UCULR Issue

Habib Olapade
UNIVERSITY OF CHICAGO
UNDERGRADUATE LAW REVIEW
VOLUME V, ISSUE 1
I. Let Justice be Done Through the Heavens Fall - Why Ballot Regulations and
Political Money are Two Sides of the SAme First Amendment Coin
By
Habib
Olapade..............................................................................Page
II. Balance, Justice, and Hoor: Bedoin Customary Law in the Modern World
By
Williams
Dixon...........................................................................Page
22
III. Picturing Democracy: Analyzing Religious Exemptions to Voter ID Laws

By
Elise
Kostial.............................................................................Page
38
IV. In the Language of Because of: Transgender Identity, Theory, and Title
VII Jurisprudence
By
Andy
Kim............................................................................Page
56
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Sponsored by the Student Government Finance Committee
4 | Ballot Regulations
UCULR Volume IV, Issue 1 | 5
Let Justice Be Done Through the Heavens Fall - Why Ballot

Regulations and Political Money Are Two Sides of the Same First
Amendment Coin
Habib Olapade1*
Abstract
This note provides an alternative judicial framework for approaching,
understanding, and evaluating contribution and independent expenditure
provisions. Contribution limitations restrict the amount of money a
candidate can directly receive from a donor. On the other hand, expenditure
limits restrict the amount of money that an individual or group can spend on
electioneering communications prompting citizens to vote for a candidate.
In Buckley v. Valeo, the Supreme Court reviewed a congressional statute that
imposed both contribution and expenditure limits on federal elections. The
Court sustained the former but invalidated the latter. This note argues that
the democratic theory undergirding the Courts majority opinion in Buckley
was flawed and is normatively undesirable when compared with a more
inclusive communitarian model. This note then proposes a new framework
for evaluating limits on independent expenditures. In particular, it will argue
that courts should evaluate expenditure limits and ballot regulations under
a similar standard because the objectives of the two procedural regulations
are analytically indistinguishable. The note begins by isolating the pluralist
democratic theory that provides the animating ethos for the Courts
assertions in Buckley. The piece concludes that a pluralist democratic theory
is normatively undesirable in contemporary America because it carries false
assumptions and promotes inequality in the political arena. The note then
considers an alternative communitarian democratic theory and concludes
that this paradigm is more desirable because it fulfills democratic equality
principles. Finally, the article applies this communitarian framework to
expenditure limits and finds that regulation of this communication may be
justified by the governments interest in protecting the integrity of elections
much in the same way that the government justifies ballot restrictions or
Voter ID.
Let Justice Be Done Though the Heavens Fall Why Ballot Regulations
: Habib Olapade is an third-year at Stanford University
and Political Money Are Two Sides of the Same First Amendment Coin2
On June 24, 1974, Richard Nixon took a seat in the Oval Office,
placed his head in his hands, and wept, a broken man.3 Less than two years
removed from one of the most impressive electoral victories in the nations
history, the poor California Quaker turned Commander-in-Chief, to no
avail, had spent all of his renewed political capital fighting allegations of
financial foul play during his last campaign.4 When confronted with the
prospect of a legion of lawsuits from public interest firms, Nixon melted
under the pressure and turned over his campaign records. Scandal ensued.
The classified documents revealed that the Nixon campaign was bankrolled
by multiple million-dollar contributions from a few individuals and
Fortunate 500 Companies.5 To make matters even worse, Nixon spent a
2: See Rex v. Wilkes, 4 Burr 2527 (1770), where Lord Mansfield reportedly
uttered, the constitution does not allow reasons of State to influence our
judgments: God forbid it should! We must not regard political consequences;
how formidable soever they might be: if rebellion was the certain consequence,
we are bound to say fiat justitia ruat caelum(let justice be done though the
heavens fall), in response the defense council of a journalist who published
sensational articles badmouthing political opponents request for leniency in fear
of what rowdy crowds may do. See also Brian Harris, The Literature of the Law
(Hamphsire: Ashford Colour, 1998).
3: Nixon had spent the previous night awake making several phone calls.
Coincidently after he gave his famous Watergate speech on April 30th, he received
two separate phone calls from Ronald Regan (available at https://www.youtube.
com/watch?v=0hO0oVu6FUw), then Governor of California, and George H.W.
Bush (available at https://www.youtube.com/watch?v=aSrMOm1roVs), who was
serving as Chairman of the Republican National Committee. Nixons differential
treatment of the two is interesting to say the least. Carroll Kilpatrick, Nixon
Resigns, Washington Post (August 9, 1974).
4: Nixon fought to the end in order to prevent secret White House tapes from
confirming his role in the debacle. In the end a unanimous Supreme Court
composed of four members he appointed forced him into submission. See United
States v. Nixon 418 U.S. 683 (1974) (holding that the president could not claim
executive privilege in the absence of a need to protect military, diplomatic, or
national security secrets and ignore a special prosecutors request for tape
recordings and documents that were known to be relevant to the prosecutors
task).
5: See United States v. Finance Committee to Re-Elect President, 507 F.2d 1194
(1974) (revealing a list of more than 1,500 persons who had contributed over
$5 million to the Nixon campaign (including Richard Mellon Scaife, a heir to
the Mellon fortune, and W. Clement Stone, a billionaire insurance magnate)
and a concerted effort by the Nixon campaign to avoid disclosure requirements
in the Federal Election Campaign Act of 1972 by collecting over $20 million
substantial amount of the money on hiring staff to break into offices and
bribe officials.6 To the extent that fair and untainted elections allow public
servants and the people to establish the necessary rapport for a government
to draw on the electorates confidence, Nixon had not only broken the rules,
he made a mockery of the process.7
But from a purely functional perspective, the most disturbing aspect
of the Nixon fiasco was that it was not clear that Nixon had broken any
rules. Federal bans on contributions from corporations and labor unions
were on the statute books but were unenforced dead letters?8 Nixon, always
in contributions from individuals and corporations before the statute became
effective on April 7, 1972). American Airlines was fined $5 thousand for making
an illegal $55,000 contribution to the Nixon campaign and attempting to cover up
the transaction by employing a Lebanese agent to funnel the cash through a Swiss
bank account. For a treatment of corporate prosecutions resulting from illegal
campaign activity Herbert E. Alexander, Financing the 1972 Election (Lexington:
Lexington Books, 1976).
6: Contemporaneous accounts suggest that excess funds from the Committee to
Re-Elect the President were used to skew the results of the Democratic Presidential
Primary system. Indeed after Edmund Muskie, a Democratic senator from Maine,
lost the nomination bid to George McGovern, Muskie complained that the Nixon
campaign stole documents from his campaign headquarters, made phone calls in
the middle of the night claiming to represent Muskie, and published false items in
newspapers cited in note 4.
7: R. Michael Alvarez and Thad E. Hall, Measuring Perceptions of Election
Threats, in Election Fraud, (Washington D.C.: The Brookings Institution,
2008), 71-88.
8: The Tillman Act of 1907 (2 USC. 441b(2)) prevented corporations from
contributing money to political campaigns and was the first federal law to restrict
corporate involvement in the electoral process. The Smith-Connally Act extended
the contribution ban to labor unions and was only operative for the duration of the
Second World War. The Taft-Hartley Act of 1947(29 USC 401-531) made the
contribution ban permanent for labor unions. UC Irvine Law Professor Richard
Hasen writes that disclosure reports were often missing, incomplete, or wrong.
Enforcement was so lax that the Justice Department refused to prosecute 20 Nixon
fundraising committees that had not filed a single disclosure report during the
1968 presidential campaign, or 107 congressional candidates who also violated
disclosure rules. Some scholars may insist that Nixons behavior, regardless of
what others were doing, was still inexcusable. But in this instance, at least as it
pertains to Nixons fundraising activities, condemnation of the former presidents
behavior is contingent on whether one believes that unenforced, formal regulations
have all the moral force of statutes that are actively enforced. For a philosophical
examination of the difference between regulations that are enforced and those
that are not, see Karl Llewellyn, A Realistic Jurisprudence The Next Step 30
the pragmatist, could hardly be faulted for breaking regulations that none
of his competitors bothered to comply with. In truth, Nixons failure was
symptomatic of the political systems failure.
In 1974, Congress responded to public outcry by passing several
amendments to the Federal Election Campaign Act of 1972.9 The
amendments, among other things, provided that no person shall make
contributions to any candidate with respect to any election for Federal office
which, in the aggregate, exceeds $1,000.10 The statute also prohibited any
person [from] making any expenditure [relative] to a clearly identified
candidate during a calendar year [which] exceeds $1,000.11 Contributions
are direct monetary gifts from a donor to a campaign. Expenditures are
usually, but not always, media ads that support a certain political position
and by implication candidates who support that position, without explicitly
naming the candidates or coordinating with them.12
Colum L Rev. 431 (1930). For a treatment of early corporate campaign finance
regulations, see Adam Winkler, Other Peoples Money: Corporations, Agency
Costs, and Campaign Finance Law 92 Georgetown L J 571 (2004). For a treatment
of loopholes in early campaign finance regulations, see Julian E. Zelizer, Seeds of
Cynicism: The Struggle over Campaign Finance, 1956-1974 14 J. POLY HIST
73, 76 (2002) cited in Richard Hasen, The Nine Lives of Buckley v. Valeo, in
First Amendment Stories, (New York: Foundation Press, 2012) 345-374 .
9: Pub L No 93-433. From this point forward, any reference to the FECA is only
concerned with the 1974 amendments unless otherwise stated.
10: 2 USC 608 (b).
11: 2 USC 608 (e)(1). Congress also limited the amount of personal and family
funds that candidates could spend on their campaigns (2 USC 608 (a)(1)), placed
an aggregate cap on campaign expenditures for candidates running for federal
offices 2 USC 608 (c)), erected a public financing regime for presidential election
campaigns (2 USC 6096), and established the Federal Election Commission (2
USC 14). These provisions will not be examined in this article.
12: Expenditures that are coordinated in any way with a candidate or her campaign
are treated as contributions. See Federal Election Commission v. Colorado
Republican Federal Campaign Committee II 533 U.S. 431 (2001) (establishing
that the First Amendment allows a partys coordinated election expenditures to be
treated functionally as contributions). Compare to Colorado Republican Campaign
Committee v. Federal Election Commission 518 U.S. 604 (1996) (holding that
a partys independent expenditures may not be subject to contribution limits
applicable to candidates when a candidate has not been nominated.) With regard
to an electioneering communications reference to a clearly identified candidate,
for quite some time ads that refrained from using magic words such as vote for,
elect, support, cast your ballot for, vote against, defeat, or reject were
deemed permissible. However, the line between ads that expressly advocated for
a candidate and ads that only advocated on behalf of political issues was always
The independent expenditure limitation, in the words of Claiborne Pell,

then chair of the Senate Subcommittee on Elections and Privileges, was
intended to create a climate that minimizes abuseand [allows] voters
the right to choose candidates, who are not beholden to large political
contributions.13 Expenditure limitations also enhanced the effectiveness
unclear as evidenced by this Wisconsin Right to Life Ad which was not held to
be express advocacy (available at https://web.archive.org/web/20040805062820/
http:/www.befair.org/ad_campaign.php) . See also Federal Election Commission
v. Wisconsin Right to Life 551 U.S. 449 (2007) (ruling corporations and unions
could seek an as-applied exception from 201 of the Bipartisan Campaign
Reform Act, which prevented corporations and unions from engaging in express
advocacy within 30 days of a federal primary election or 60 days of a federal
general election).
13: Senate Floor Debates on S. 3044, 93rd Cong., 2nd Sess. reprinted in FEC,
LEGISLATIVE HISTORY OF FEDERAL ELECTION CAMPAIGN ACT
AMENDMENTS OF 1974, at 193 (1997). Many readers may be tempted to
conceive of undue influence as strictly quid pro quo bribery. But as former Labor
Secretary Robert Reich pointed out in a New Yorker article that appeared on
October 13, 1997, undue influence can take many forms. In some cases the harm
the state may wish to guard itself against is not blatant misconduct but rather, the
gradual shift in a politicians mode of thinking which comes with constant and
never-ending elbow rubbing among wealthy socialites. Secretary Reich writes:
Heres how it works. A wealthy individual receives an invitation to have coffee
with the President or, say, with the chairperson of a congressional committee.
The invitation may have come about without any effort on the part of the wealthy
individual, or the wealthy individual may have solicited it. In either case, the real
value of the event to the individual is that it confirms the impression of others
that he is capable of commanding the attention of a President or another powerful
person in Washington. The photograph memorializing the coffee chat, complete
with signature, hangs by no means discreetly on the office wall. The personal
thank-you note to the wealthy individual which arrived from the politician is slyly
shared with others. Word spreads of a subsequent invitation to golf.What this
does for the wealthy individual is incalculable. Suddenly, he has become someone
with access to a Powerful Ear -- become a person, it is presumed, of influence.
Such a reputation is valuable to him, socially and financially and in the dimly lit
areas in between. It gives the people with whom he does business the sense that
he can deliver on whatever he proposes . . . .In return, the politician may or may
not get a campaign contribution directly from the wealthy individual, and, in fact,
may never get much of one at all. But as far as the politician is concerned that
donation is not the point of the transaction. Through the wealthy individual the
politician gains access to a network of wealthy people . . . .No policy has been
altered, no bill or vote willfully changed. But, inevitably, as the politician enters
into the endless round of coffees, meals and receptions among the networks of the
of contribution limits by limiting the demand for money among

candidates14and preventing wealthy individuals from using independent ad
campaigns to acquire undue influence over public officials.15
wealthy, his view of the world is reframed. The seduction has been mutual. The
access that the politician provides the wealthy and the access that the politician
thereby gains to the ever-expanding network of money reinforce each other.
Increasingly, the politician hears the same kinds of suggestions, the same voicing
of concerns and priorities. The wealthy do not speak in one voice, to be sure, but
they share a broad common perspective in which such things as balancing the
budget, opening trade routes, and cutting taxes on capital gains are of central
importance. Meanwhile, the politician hears only indirectly and abstractly from
the less comfortable members of society. See Robert Reich, Party Favors: In
the Raising of Campaign Funds, the Currency Is Power by Association, The New
Yorker, Oct. 13, 1997 [cited in Frank Askin, RESPONSE: Political Money and
Freedom of Speech: Kathleen Sullivans Seven Deadly Sins -- an Antitoxin, 31
U.C. DAVIS L.REV. 3 (1998).
14: See Buckley v. Valeo 424 U.S. 1 (1976) (White dissenting) (disputing the
Courts equation of money with speech and arguing that expenditure limits are
necessary in order to ensure that contribution limits are effective). To the extent
that the 1974 FECA amendments sought to decrease the role of money in politics,
lowering maximum contribution limits but allowing unlimited expenditures
would have been counterproductive. This was the case because if campaigners
were allowed to spend as much as they wanted to on elections and continued
to believed that there was a positive correlation between expenditure levels and
winning elections, they would be incentivized to raise the same amount of money
they had accumulated before the passage of the FECA amendments. However with
smaller maximum contribution limits, the campaigners would have to raise that
money among a broader base of supporters, which arguably would have increased
the amount of time a candidate devoted to fundraising a result that presumably,
the FECA amendments did not want to achieve. Expenditure limits reinforced the
statutory framework by capping the demand for money among campaigns. This
point was made by Senator Bill Bradley of New Jersey: [All interested money
in politics is potentially corrupting. Whether it comes from an Individual, a PAC
or a candidates own investment, it sometimes comes with strings attached and
limiting one source will only open up others. Money in politics is like ants in
the kitchen. You have to close every hole, or they will find a way in. See Bill
Bradley, Money, Interest Groups are Corrupting Democracy, The Baltimore Sun,
July 21, 1996.
15: House Report No 93-1239 on H.R. 16090, 93rd Cong., 2nd Sess., p. 6 (1974). It is
still an open question whether independent expenditures are beneficial or harmful
to campaigns they seek to support. The consensus answer seems to be that any
prospective benefit is limited and might even be counterproductive. See Richard
L. Berke, Outside Help on Issues Raises G.O.P. Fears of Voter Backlash, New
York Times, Mar. 25, 1998. However, even if this is the case, it does not eradicate
However in Buckley v. Valeo (1976)16, the Supreme Court laid waste

to the FECAs statutory framework by invalidating the independent
expenditure limit on the grounds that it violated the First Amendment
right to freedom of speech. This article will argue that the democratic
theory undergirding the Courts majority opinion in Buckley was flawed
and is normatively undesirable when compared with a more inclusive
communitarian model. This piece will then propose a new framework for
evaluating limits on independent expenditures. In particular, it will argue
that courts should evaluate expenditure limits and ballot regulations under a
similar standard because the objectives of the two procedural regulations are
analytically indistinguishable.
The Supreme Courts 294 page per curiam Buckley opinion is riddled
with internal contradictions because, for better or worse, it subordinated
principled reasoning for compromise.17 The opinion was delivered under
severe time constraints in part because the Justices wanted to ensure that
federal candidates had a clear picture of which regulations they would
be obliged to follow during the upcoming 1976 election season.18 Of
the prospect of wealthy spenders gaining undue access or influence over public
officials. Candidates can often find out who has been spending funds to in order
to influence their chances of election and reward these spenders accordingly if
they win, or promise access in the event that they win in order to discourage
independent expenditures. See Cass Sunstein, Political Equality and Unintended
Consequences, 94 Colum L Rev. 1396 (1994).
16: Buckley v. Valeo, 424 US 1 (1976)
17: The opinion contained 178 footnotes with 5 different opinions attached to the
per curiam opinion. The literature criticizing Buckley is large and growing. See
Peter Strauss, Corruption, Equality, and Campaign Finance, 94 Colum L Rev.
1369 (1994), J. Skelly Wright, Politics and the Constitution: Is Money Speech,
85 Yale L J. 1001 (1976), Daniel Polsby, Buckley v. Valeo: The Special Nature of
Political Speech, SUP.CT.REV. (1976), Cass Sunstein, Free Speech Now, U Chi L
Rev. 255 (1992), and Ronald Dworkin, The Curse of American Politics, N.Y. Rev.
of Books, October 17, 1996.
18: The FECAs swift passage to the nations highest tribunal was no accident.
During the Senates debate on the FECA amendments, Senator James Buckley of
New York introduced an amendment to provide for expedited review of the statute,
which would allow a prospective challenger to file a lawsuit in U.S. District Court
for the District of Columbia. The D.C. court would then certify constitutional
questions for an en banc hearing before the United States Court of Appeals for
the District of Columbia Circuit with appeal to the U.S. Supreme Court also being
provided. During debate Senator Buckley said: [It] is a modification that I am
sure will prove acceptable to the managers of the bill. It merely provides for the
expeditious review of the constitutional questions I have raised. I am sure we will
particular interest here, was the Courts differential analysis of expenditure

and contribution limits under the First Amendment. According to the
Justices, contribution limits were constitutional because they only entailed
a marginal restriction on the contributors ability to engage in free
communication.19 Indeed, in the eyes of the Court, contributions at
most [only]provide[d] a rough index of support for the candidate.20 A
limitation on contributions therefore involved little restraint on political
communication and was closely drawn to serve the states compelling
interest in preventing quid pro quo corruption or the appearance of
corruption.21
On the other hand, expenditure limits were categorically different from
contribution restrictions because a restriction on how much a person or
group can spend on political communication during a campaign reduces
the quantity of expression by restricting the number of issues discussed,
the depth of their exploration, and the size of the audience reached.22
The $1,000 spending limit, consequently, excluded all citizens and groups
except candidates and political parties from the most effective means of
communication [i.e. mass telecommunication ads].23 After taking notice
of this fact, the Court concluded that the expenditure limitations would
have to pass strict scrutiny, or be narrowly tailored to serve a compelling
government interest, in order to be held constitutional. Because strict
scrutiny is perhaps the most rigorous standard of review a court trying
constitutional issues can employ, the chance that the Justices would uphold
the expenditure limits were slim from the outset.24
The Court refused to accept the argument that expenditure limits
were appropriately tailored to prevented corruption or the appearance of
all agree that if, in fact, there is a serious question as to the constitutionality of
this legislation, it is in the interest of everyone to have the question determined by
the Supreme Court at the earliest possible time. 120 Cong. Rec. 10562 (1974).
19: Buckley v. Valeo at 29-30 (cited at note 15).
20: Id at 30.
21:Id at 31.
22: Id at 29.
23: This sentence was accompanied by a footnote that said: being free to engage
in unlimited political expression subject to a ceiling on expenditures is like being
free to drive an automobile as far and as often as one desires on a single tank of
gasoline. See Buckley v. Valeo at 120 (cited at note 15).
24: Giving credence to the popular idiom that strict scrutiny is strict in theory, but
fatal in fact. See Gerald Gunther, The Supreme Court, 1971 Term Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal
Protection, 86 Harv L Rev 3 (1972).
corruption for two reasons. First, the Justices argued that spenders could
dodge the limit as long as they did not explicitly urge the election or defeat
of a candidate in their message. Second insofar as candidates were the
only entities the FECA sought to protect from corruption, independent
expenditures could not corrupt them because independent expenditures
by definition could not be coordinated with a candidate. The Justices then
turned to another potential rationale for the limits: equalizing speaking
power among individuals and groups. In one of the more infamous lines in
the U.S. Reports, the Court declared that the concept that the government
may restrict the speech of some [in] society in order to enhance the relative
voice of others is wholly foreign to the First Amendment and struck down
the expenditure limitations even though they were necessary to ensure the
integrity of the contribution caps the Court readily accepted.25
Countless commentators have lambasted Buckleys equation of money
with speech as utterly antithetical to any reasonable notion of democracy.26
But, this portrayal is superficial. Buckley can be read as consistent with
democracy albeit only a certain type: pluralist/public choice democracy.27
Pluralist/public choice democrats are realists in the sense that they
recognize the limits of the individual citizen to register his or her opinions
with him or her seemingly distant government in the twenty-first century.28
Voters may have a tough time communicating with decision-makers, may
not be well-informed, and can be easily influenced by slanted information.29
In order to overcome these barriers, the populace mobilizes and fragments
into different interest groups based on salient identities or preferences that
precede and are unaltered by debate during and after election season. This
phenomenon, in turn, gives rise to countless organizations via Newtonian
principles. For example, dairy milk farmers may realize that they stand to
25: Buckley v. Valeo. at 37 (cited at note 15). See also McCutcheon v. Federal
Election Commission 134 S.Ct. 1434.
26: See Phillip Elliot, Former Supreme Court Justice John Paul Stevens: Money
is not Speech, Huffington Post, April 30, 2014. David Kaiys, Money Isnt Speech
and Corporations Arent People, Slate, January 22, 2010. Peter Overby, Hillary
Clinton Supports Amendment to Get Hidden Money Out of Politics, WBGH News,
April 18, 2015. and Newton N. Minow, Spending is not Free Speech, Washington
Post, February 16, 2000.
27: See Pam Karlan and Samuel Issacharoff, The Hydraulics of Campaign Finance
Reform, 77 Tex L Rev 1723 (1999).
28: Walter Lippmann, Public Opinion (New York: Macmillan, 1949). David
Truman, The Governmental Process: Political Interests and Public Opinion
(New York: Knopf, 1951).
29: Id.
benefit if they collectively organize and apply pressure on the government

for preferential subsidies. In reaction, soy milk producers may feel
compelled to organize and lobby the government to protect their interests.
Because the pluralist model assumes that no one group has enough power
to control the governing process and can only hold onto the reins of power
for as long as it can retain a coalition of supportive factions, control of
the government constantly switches among parties composed of different
groups.30 Hence under the pluralist model, the political system exists in
order to facilitate the aggregation of pre-existing desires and enable voters
to obtain government benefits or prevent government action in accordance
with those desires. To this end, Buckleys accordance of First Amendment
protection to political money allows these relatively equal groups to speak/
spend as much as they want without fear of reprisal from a government
that may maliciously seek to silence certain factions for the benefit of
others.31 On this count if one accepts pluralism, Buckley is a refreshing
reinforcement. But as a corollary to this postulate, if pluralist democracy is
found to be unacceptable, Buckley is no longer welcome at the table.
30: There are several works of political theory that have been identified as
historical antecedents of modern pluralist theory. See James Madison, Federalist
10 [cited in Michael Stokes Paulsen, Steven G. Calabresi, Michael W. McConnell,
and Samuel L. Bray, The Constitution of the United States 581-586 (Foundation:
New York, 2013) 581. Vices of the Political System of the United States,
University of Chicago, accessed April 29, 2015, http://press pubs.uchicago.edu/
founders/documents/v1ch5s16.html, Max Farrand, The Records of the Federal
Convention of 1787 (New Haven: Yale, 1911) 135.
31: When a state regulation appears to be motivated out of a desire to regulate
speech because of its content or the viewpoint it professes, courts presume
that the regulation violates the First Amendment and apply strict scrutiny. See
Texas v. Johnson 491 US 397 (1989) (invalidating a ban on flag burning that
was under-inclusive because the regulation sought to ban the communication of
anti-government sentiment), Consolidated Edison Corporation v. Public Service
Commission 447 US 530 (1980) (commenting that content based regulations of
speech can only be sustained on challenge, if the law is a precisely drawn means
of serving a compelling state interest), and R.A.V. v. City of St. Paul 505 US 377
(1992) (establishing that the state may not regulate unprotected forms of hate
speech by favoring one viewpoint over another). Compare this approach to state
regulations of speech which are found to be motivated by interests other than the
suppression of ideas. See United States v. OBrien 391 U.S. 367 (1968) (upholding
a ban on the burning of draft cards as a state effort to ensure the efficiency of
the draft rather than a prohibition on the expression of anti-war sentiments) and
Kovacs v. Cooper 366 US 77 (1949) (upholding an ordinance preventing the use
of sound trucks in streets as a time, place, and manner restriction).
As a purely descriptive matter, pluralist democrats and cynical public

choice theorists may be correct in arguing that their democratic theory
closely resembles how the national government functions currently.32 But
even if we were to concede the validity of this point, it has no bearing
on whether such a system is ideal or even normatively desirable when
compared to other alternatives. Indeed, a strong argument could be made
that the pluralist model is deficient from both a procedural and substantive
perspective.
Practically speaking, procedural integrity during elections and
representative democracy are not mutually exclusive.33 If one believes that
representative democracy has a superior claim to legitimacy over other
forms of government because it is founded on, and makes regular recourse
to, popular sovereignty then, the elections that allow the government to
consult its raison dtre cannot be unjust in terms of who may and may not
participate.34 For our purposes, the justness of an exclusion is determined
by whether an electoral procedure forecloses the participation of a group
because it possess a trait that bears no relevance towards intelligent exercise
of the ballot. For instance, ceteris paribus, the state may prevent the mentally
ill from voting but may not disenfranchise the poor. This conclusion is
valid for two reasons. First, in law and fact every citizen ought to have
an equal claim on their government irrespective of race, religion, gender,
or wealth (henceforth referred to as the non-discrimination principle).35
32: Richard A. Posner, The Problems of Jurisprudence (Cambridge: Harvard,
1993) 354-355. [Excerpted in Abner J. Mikva and Eric Lane, Legislative Process
(New York: Aspen, 2009) 15-16.]
33: To paraphrase Associate Justice Robert H. Jackson during the height of the
Cold War: if the choice were between American substance combined Soviet
procedure as opposed to Soviet substance combined American procedure might
well prefer the latter. The importance of procedure extends beyond the courtroom
and can have substantive policy implications during the legislative process. In
fact, John Dingell, a retired congressman from Michigan, once remarked if you
let me write the procedure and I let you write the substance, Ill beat you every
time.
34: See Bruce E. Cain, Moralism and Realism in Campaign Finance Reform, U
Chi Legal F (1995) and John Locke, Second Treatise of Government, 47 (1689).
35: The Supreme Courts 14th amendment equal protection jurisprudence shows
a deep commitment to the non-discrimination principle. See Korematsu v.
United States 323 US 241 (1944) (establishing for the first time that government
distinctions on the basis of race will be subject to strict scrutiny), Brown v.
Board of Education I 347 U.S. 483 (1954) (overturning the separate but equal
doctrine in public education), United Jewish Organizations of Williamsburg v.
Carey 430 U.S. 144 (1977) (ruling that state consideration of race in the context
Ideally, citizens would exercise this prerogative by voting and participating

in the political process on a level playing field, which is why the U.S.
Constitution does not permit American jurisdictions to adopt a formal or
de facto plural voting scheme indexed to some desirable trait.36 Second,
of redistricting immediately after the Civil Rights Movement was not invidious
and thus warranted rational basis review as opposed to strict scrutiny), Adarand
Constructors Incorporated v. Pea 515 US 200 (1995) (establishing that all race
based distinctions by the state are invidious and will be subject to strict scrutiny),
Church of the Lukumi Babalu Aye v. City of Hialeah 508 US 520 (1993) (holding
that an ordinance preventing the religiously-mandated ritual sacrifice of animals
violated the free exercise clause of the First Amendment), Sherbert v. Verner
374 US 398 (1963) (establishing that termination of public employment for
reasons that conflicted with the employees religion were to be subject to strict
scrutiny), Reed v. Reed 404 US 71 (1971) (ruling that a state probate statute that
gave preference to men over women in the administration of estates violated the
14th amendments equal protection clause), Craig v. Boren 429 US 190 (1976)
(establishing that state regulations discriminating on the basis of gender would be
subject to intermediate scrutiny), and Harper v. Virginia State Board of Elections
383 US 663 (1966) (striking down a state poll tax as a violation of the 14th
amendments equal protection clause).
36: See Baker v. Carr 369 US 186 (1962) (holding that malapportionment claims
under the 14th amendments equal protection clause were justiciable and not
foreclosed by the political question doctrine), Reynolds v. Sims 377 US 533 (1964)
(holding that the 14th amendments equal protection clause requires state legislative
districts to be apportioned with a good faith effort to achieve population equality)
and Karcher v. Daggett 462 US 725 (1983) (reaffirming the one person one vote
principle and a standard of strict population equality for congressional districts).
To be sure, this notion of voter equality did not always dominate the redistricting
process. Indeed, there is historical evidence suggesting that political gerrymanders
in the United States existed as early as 1740. The practice manifested itself in
Britain in the form of rotten boroughs, or parliamentary districts that contained an
extremely small amount of voters. The most famous of these was Old Sarum a
jurisdiction in which there was allegedly more sheep and cows than people. See
Elmer Griffith, The Rise and Development of the Gerrymander (Chicago: Scott,
Foresman, and Company, 1974) 26-28. Cited in Vieth v. Jubelirer 541 US 267
(2004) (rejecting a partisan gerrymandering claim under the 14th amendments
equal protection clause but maintaining the justicability of these claims under the
1st amendment). But there, was early resistance to malapportionment to be sure.
Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale,
1911) 132. and Bernard Baiyln, Ideological Origins of the American Revolution
(Cambridge: Harvard, 1967) 47. The practice takes its name from Elbridge Gerry,
who drafted a skewed and malapportioned redistricting map in 1812 in order to
diminish the power of Federalist voters in the Bay State.
the government in question loses legitimacy in the eyes of its citizens, to

the extent that voter turnout and civic engagement levels are lowered by
unjust exclusion (henceforth referred to as the legitimacy principle).37 This
mechanism is harmful because it encourages apathetic behavior among the
citizenry during election season, a time when the exact opposite demeanor is
required, and has the potential to ultimately impair the governments ability
to function.
Just electoral procedure is a sine qua non for any government hoping
to fall under the democratic label but it is not the only one. To be
sure, a state that grants universal suffrage and ensures equal opportunity
to participate in the political process would still be seen as deficient to
most if it silenced political dissidents, segregated on the basis of race, or
subordinated half the population because it lacked a Y chromosome.38 It
37: See Grutter v. Bollinger 539 U.S. 306 (2003) (upholding the University of
Michigan Law Schools affirmative action program in part on the grounds that
a failure to integrate leadership positions in American society would stir racial
unrest and further deter the arrival of a color-blind society).
38: Indeed cases championing these propositions have been condemned by all
strains of popular thought in legal academia. See Prigg v. Pennsylvania 41 US
539 (1842) (holding that slave-owners have a common law right of recapture
for reclaiming runaway slaves), Paul Finkelman, Story Telling on the Supreme
Court: Prigg v. Pennsylvania and Justice Joseph Storys Judicial Nationalism,
SUPREME COURT HISTORY (1994), 247-294, Dred Scott v. Sandford 60 U.S.
393 (establishing in dicta that African-Americans had for more than a century
before 1854 been regarded as beings of an inferior order, and altogether unfit
to associate with the white race, either in social or political relations; and so far
inferior, that they had no rights which the white man was bound to respect; and
that the negro might justly and lawfully be reduced to slavery for his benefit),
Christopher Eisgruber, The Story of Dred Scott: Originalisms Forgotten Past,
Constitutional Law Stories 155-186, Plessy v. Ferguson 163 U.S. 537 (1896)
(ruling that separate but equal public transportation facilities did not violate the
14th amendments equal protection clause), Cheryl Harris, The Story of Plessy
v. Ferguson: The Death and Resurrection of Racial Formalism, Constitutional
Law Stories 187-230, Bradwell v. State 83 U.S. 130 (denying that the 14th
amendments privileges and immunities clause conferred any rights upon women
and remarking in dicta that the law of the creator required that women remain in
the home), Catherine Mackinnon, Sex Equality (New York: Foundation, 2001),
Frances Olsen, From False Paternalism to False Equality: Judicial Assaults on
Feminist Community: Illinois: 1869-1895, 84 MICH. L.REV. 1518 (1986). Minor
v. Happersett 88 U.S. 162 (1874) (holding that the 14th amendments privileges
and immunities clause did not confer the franchise on women), Nina Morais, Sex
Discrimination and the Fourteenth Amendment: Lost History, 97 Yale L J 1153
(1988), Schenck v. United States 249 US 47 (ruling that a federal statute that
follows that substance is just as important as procedure. At a minimum,

governmental outcomes in a democracy must respect the individual dignity
of all because the right to participate is meaningless if the individual
autonomy and self-development it promotes are made contingent on the
governing majoritys whim (henceforth referred to as the rights principle).39
From this perspective, the principle of procedural due process (forgive
my repetitiveness) in elections embodied above also has a substantive
element because voter apathy, in tandem with collective action dilemmas,
can prevent the enactment of policies that a majority or super-majority
of citizens would support.40 If we are willing to say that citizens would
benefit not only from participating to enact policies they support, but also,
from reaping their fruits as well, and that they have a right to engage in
these activities, the polity has suffered a substantive harm when its will is
frustrated because of a governmental framework that promotes such a result.
Which brings us to the failings of pluralist/public choice democracy.
Pluralism fails on all three counts established above. One must first consider
the non-discrimination principle. While pluralists would be correct to
object and argue that there is no de jure framework in place to deny racial
minorities, members of persecuted religious groups, women, or the poor the
right to vote and participate in elections, this equality is fictitious. Pluralism
assumes that all groups have equal financial ability to organize and assert
their interests in the market place of ideas by taking out political ads. But
even from a micro-perspective, many members of marginalized groups lack
the necessary funds to engage in pluralist politics and may not even know
that there are others out there who feel as oppressed and rejected as they
do.41 In truth, the flaw with the pluralist heaven is that the chorus sings with
criminalized attempts to conspire and cause disloyalty in the United States army
via the publication of newspapers did not violate the First Amendment), Gerald
Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine:
Some Fragments of History, 27 Stan L Rev 719 (1975), and Ronald Dworkin, A
Matter of Principle (Harvard: Cambridge, 1985).
39: See John Hart Ely, Democracy and Distrust (Cambridge: Harvard, 1980),
Martin Redish, The Value of Free Speech, 130 U Pa L Rev 45 (1974), and Edwin
Baker, Scope of First Amendment Freedom of Speech, 25 UCLA L Rev 964
(1978) [cited in Kathleen Sullivan and Gerald Gunther, First Amendment Law
(New York: Foundation, 2007) 7.
40: Russell Hardin, Collective Action (Baltimore: John Hopkins, 1982). Karlo
Barrios Marcelo and Mark Hugo Lopez, Civic Duty and Voter Apathy, in
Voting in America, (Westport: Praeger Publishers, 2008), 173-185.
41: Elmer Schattschneider, The Semisovereign People (Fort Worth: Holt,
Reinhart, and Winston, 1960).
a strong upper class accent.42 The right to vote for candidates or policies is
reduced to a cruel joke if the voter is unable to effectively communicate his
perspectives on these issues to his countryman beforehand and influence the
choices on the ballot simply because his pocketbook is empty. Buckley, in its
majestic equality, allows the rich as well as the poor to spend millions on ads
and take over TV stations.43
Pluralism does not fare any better when we turn to the legitimacy and
rights principles. I examine these two together because the establishment
of the former procedural harm is sufficient to prove the latter substantive
harm. Pluralists may say that one would be hard pressed to come up with
an empirical study proving that the current campaign finance regime is the
sole cause of voter apathy. But in a nation with an electorate of over 300
million individuals, in a state where voters are not incentivized to go to the
polls already because they rationally figure that their one vote will not make
a difference, is it really all that unreasonable to presume that an electoral
system favoring the rich and well born will further discourage lower and
middle class citizens from participating in the electoral process?44 Our
skepticism towards the apathy argument should be a function of its novelty
and plausibility and it is certainly not unprecedented or inconceivable
that the greatest menace to political freedom is an inert people pummeled
into submission by the baneful influence of exorbitant wealth.45 Hence,
42: Ibid.
43: This line is a play on a famous quote from the French poet, Anatole France.
France declared that the law, in its majestic equality, forbids the rich as well as
the poor to sleep under bridges, to beg in the streets, and to steal bread. Anatole
France, The Red Lily at 91 (1894).
44: This harm is far from fanciful. After three popular initiatives supported by a
majority of the electorate were defeated by high spending media campaigns at the
polls in Colorado during the 1976 election, a local newspaper opined: What was
lost on Tuesday was more thangood amendments. The big money boys have
undoubtedly put a chill on the efforts of citizens groups to put issues on the ballot.
Obtaining the needed signatures for an initiative is hard work, and nobody wants
to waste his or her time if all is to be stomped under the bankrolls of those with
power. See J. Skelly Wright, Money and the Pollution of Politics: Is the First
Amendment an Obstacle to Political Equality, 82 Colum L Rev 625 (1982).
Indeed, Cass Sunstien has argued that Buckley should be viewed as the modernday analogue of Lochner v New York 198 US 45 (1905) because it takes the
market status quo as just and pre-political, and to use that status quo to invalidate
democratic efforts at reform. Use of existing distributions for political expenditures
marks out government inaction. Supra Note 14.
45: See Whitney v. California 274 US 357 (1927) (Brandeis, J., concurring)
(upholding a conviction under a state criminal syndicalism statute but adding
pluralism is similar to a Greek Siren, beautiful from a distance but

dangerous upon approach. Thus, we return to square one. If pluralist/public
choice democracy cannot provide an intellectual framework for evaluating
the propriety of campaign finance reform, what theory can?
It is this articles submission that a communitarian model can provide
the democratic foundation we seek. In contrast to pluralism, under a
communitarian theory of democracy, political preferences are not presumed
to be immutable but rather, can change through deliberation on what the
public good requires.46 In the words of Stanford Law School professor, Pam
Karlan, the purpose of politics in a communitarian democracy is as much
about creating preferences as it is about satisfying them.47 This small but
important shift in premise yields implications that bring communitarian
democracy into greater conformity with the non-discrimination, legitimacy,
and rights principles.
Deliberation is essential for a communitarian democracy.48 Because
the quality of deliberation is improved by the inclusion of many different
perspectives in the polity, communitarian democracy dictates that the
state take affirmative steps to remove structural impediments preventing
disadvantaged groups from effectively advancing their views.49 This
requirement accommodates the non-discrimination principle and implies
that regulations (or an absence thereof ) permitting some groups to drown
out or dilute the message of others, who are unable to organize because
they lack an arbitrary or irrelevant characteristic, are to be disfavored. In
turn, increased inclusion in the deliberative process, in tandem with other
state efforts, is likely to increase civic participation and improve perceptions
of the governing regimes procedural legitimacy among all groups, not just
the well-off.50 Finally, a state in which voter apathy and collective action
more girth to the incitement test). Nixon v. Shrink Missouri Government Political
Action Committee 528 US 377 (2000) (remaking that the amount of empirical
evidence need to satisfy heighted scrutiny varies with the novelty and plausibility
of the professed government reason.) The Papers of Thomas Jefferson, VI, 290
and The Works of John Adams, IV, 199 [cited in Gordon Wood, The Creation of
the American Republic, (Chapel Hill: North Carolina, 1969) 64].
46: John Rawls, A Theory of Justice (Cambridge: Harvard, 1971). Owen Fiss,
Money and Politics, 97 Colum L Rev 2479 (1997). Edmund Burke, Speech to the
Electors of Bristol, University of Chicago, accessed May 2, 2015, http://presspubs.uchicago.edu/founders/documents/v1ch13s7.html.
47: See McClutchen v. FEC at 15 (cited in note 24).
48: James Fishkin, The Voice of the People (New Haven: Yale, 1997).
49: Ibid.
50: See note 35.
impediments are combated to the fullest extent possible is less likely to

suffer a substantive harm in the form of a policy outcome that would not
have resulted had the entire citizenry been properly incentivized to speak
up during the electoral process.51 Hence, the political rights of the populace
are protected. Skeptics may reply that no practical implementation of the
communitarian theory can omit all subtle devices working to discriminate
against certain groups, cast doubt on the governments legitimacy, or
prevent the full exercise of political liberty.52 This much is true but, half a
loaf is preferable to none at all. It follows that Buckley was wrong as a matter
of principle. Therefore, one must examine how a communitarian democratic
theory should inform and restructure our understanding of the problems at
issue in Buckley.
If we adopt a communitarian lens, the $1000 cap on expenditures at
issue in Buckley is best understood not as a pure restriction on speech but
instead, as a procedural regulation designed to ensure fair elections. There
are several reasons why this categorization is proper. First, restricting the
amount of money a private citizen may spend independently during a
campaign does not place a blanket ban on political speech or censure a given
viewpoint. To the contrary, the cap only forces wealthy spenders to engage
in different kinds of speech that may be more conducive to deliberation
such as grassroots canvassing. A sincere face to face conversation about a
political issue is likely to promote the discovery of truth and the intellectual
development of the citizenry in a way that a malicious thirty second ad
never could.53 The alternative modes of communication promoted by this
regulation also levels the playing field among speakers because, unlike
money, time and effort are resources that are more readily available to
the less fortunate. Cynics may retort that this view is flawed because an
expenditure cap disproportionally disadvantages conservative advocacy
and stifles the discovery of the truth because money is essential for waging
effective campaigns. As an empirical matter, the first objection is dubious
because the political opinions of elite donors are not homogenous indeed,
the interests of the wealthy differ in many important ways such that a
restriction on their ability to spend, even if it does disproportionally affect
this class, is not a pretext for censuring conservative or liberal ideas.54 The
51: See note 37.
52: For a more cynical view, see Lillian BeVier, Campaign Finance Reform,
Specious Arguments, Intractable Dilemmas, 94 COLUM. L.REV. 1258 (1994).
53: See Dworkin (cited at note 14).
54: See Shaila Dewan and Robert Gebeloff, Among the Wealthiest 1%, Many
Variations, New York Times, Jan. 14, 2012.
second objection betrays a fundamental misconception that has obscured

a true understanding of what was at stake in Buckley. Regardless of how
broadly one reads the First Amendment, almost all parties agree that
spending money is an action that is analytically distinguishable from speech.
There are some instances where money can advance expression and there are
others where it does not. Money is only significant insofar as it is a vehicle
for speech. But as established above, it is not the only way to get from point
A to point B. Moreover, to the extent that money is the only viable means of
transmitting electoral expression currently, this unfortunate status quo is a
function of the political systems failure to limit demand for the commodity
a situation that the expenditure limits were designed to correct. In short,
if one limits the amount candidates and private citizens may spend, money
quickly losses its preferred position. Hence, the second objection is circular.
All that remains is to devise a new legal framework for evaluating campaign
finance limits.
There is a great deal of similarity between ballot regulations and political
money. Both regulations arise in the context of elections, implicate
countervailing First Amendment rights, and are justified by the compelling
state interest in maintain order during elections and ensuring procedural
fairness.55 In the same way that one may not use the ballot as a soap box
to overwhelm voters with repetitive and slanted messages in order to
prevent them from exercising a discriminate choice, public deliberation
requires a measure of streamlined equity to ensure that ideas are evaluated
55: Samuel Issacharoff, Pam Karlan, and Richard Pildes, The Law of Democracy:
Legal Structure of the Political Process (New York: Foundation 2012). Burdick
v. Takushi 504 US 428 (1992) (holding that a state prohibition on write in voting
does not violate the First and Fourteenth amendments), Munro v. Socialist
Workers Party 479 US 189 (1986) (ruling that a state law requiring candidates to
obtain at least one percent of the primary vote in order to appear on the ballot did
not violate the First and Fourteenth amendments), Timmons v. Twin Cities Area
New Party 520 US 351 (1997) (establishing that a state prohibition on fusion
candidacies does not violate the First and Fourteenth amendments), Crawford
v. Marion County Election Board 553 US 181 (2008) (sustaining a state voter
identification law on a facial challenge because of a lack of compelling evidence
that the measure would unduly burden the right to vote), Randall v. Sorrell 548
US 230 (2006) (invalidating a state contribution limit because it was too low
and prevented candidates and political committees from amassing the necessary
resources for effective advocacy), Citizens United v. Federal Election Commission
558 US 310 (2010) (Breyer dissenting) (objecting to the Courts decision to apply
intermediate scrutiny to a prohibition on corporations and unions using treasury
funds to engage in independent expenditures and preferring the application of a
balancing test.)
on their merits, rather than on how forceful their advocates are.56 When
one considers that communitarian democracy requires electoral speech
to facilitate deliberation, one can conclude that the real purpose of the
First Amendmentis not to guardunregulated talkativeness. [The
provision] does not mean that on every occasion every citizen shall speak
in the public debate, but it does mean that everything worth saying shall
be said.57 To be clear, this piece is not advocating that the government
make content based decisions and censure electoral speech. However,
it is advocating that the constitution permits the government to foster
deliberation among all its citizens by ensuring that economic inequality
does not bleed into the political sphere. If one believes that the discovery of
truth is better promoted by communitarian deliberation and not a clash of
non-representative interest groups that are unwilling to change their policy
stances, an interpretation of the First Amendment that, at the very least,
does not balance the right of the polity to deliberate against the right of the
individual to spend is incorrect. Hence, courts should evaluate expenditure
limits with the same balancing test that they use when reviewing ballot
regulations. A jurist would first ask whether the limit unduly burdens pure
speech while also taking the pro-deliberative rationale into account.58 If
the limit is burdensome, it would have to be narrowly tailored to serve a
compelling government interest. If the limit is not burdensome, it would
only have to be rationally related to a legitimate government purpose in
order to be upheld.59 This approach is preferable because it takes reasons
of state into account in the inquiry and forces judges to be realists when
evaluating laws that touch the heart of a democracys ability to function.
In this particular instance if justice is to be done, circumstances must be
reckoned with.
56: See note 44.

57: Alexander Meiklejohn, Free Speech and its Relation to Self-Government
(New York: Harper, 1948).
58: See Dewan and Gebeloff (cited at note 53).
59: Id.
24 | Balance, Justice, and Honor
Balance, Justice, and Hoor: Bedoin Customary Law in the

Modern World
Williams Dixon
Abstract
This article examines the nomads in the Middle East, the Bedouin, and
how their honor-based society resulted in a unique justice system unlike
those of most sedentary cultures. The unforgiving conditions of the desert
necessitated a code to govern interactions between people, families, and
tribes to facilitate survival. The typical verdicts in customary law attempted
to make injured parties whole and repair necessary relationships essential
to desert life. In a community where every individual had an important
role, no punishments were designed to remove an individual from society.
After a brief introduction to Bedouin culture, I introduce key fundamentals
of customary law before delving into cases of criminal law, domestic law,
and territorial disputes. In discussing a select few cases recounted by
outside observers, I show that not only does the honor based code center
around balance, but that it greatly differs from sedentary legal systems with
sometimes negative consequences.
I. Background

For millennia pastoralists have endured in the deserts of the region now
known as the Middle East. Perhaps the best known group of nomads is the
Bedouin, who have developed a social system that addresses all interactions
between people, tribes, and sedentary civilization. The essential component
to the successful functioning of Bedouin society is their concept of honor.
Perhaps most importantly, the Bedouin justice system does not focus on
punishment; rather it seeks to maintain relationships through decisions that
rely on honor and its restoration. Therefore, to engage in a thorough analysis
of the cases and laws in the Bedouin social context, a basic understanding of
Bedouin culture and honor is necessary.
In the past, many associated the Bedouin with pillage and theft.1
However with the help of research conducted by Louise Sweet an alternative
understanding is possible. Sweet proposes that the Bedouin camel raid is in
1: Louise E. Sweet, Camel Raiding of North Arabian Bedouin, Am
Anthropologist 67, 1132 (1965).
fact a balancing force that has resulted in an honor based code of conduct. In
order to grasp the concept of the camel raid, one must understand the basic
structure of Bedouin communal structures. At the very center of Bedouin
life was the camel. The camel was essential to the survival of the nomadic
desert tribes. The Bedouin relied on the camel as a source of food in the form
of milk, a source of clothes in the form of wool, a source of shelter in the
form of leather, and a mode of transportation.2 The camel is an animal that
is perfectly adapted for life in harsh desert conditions, can survive on little
or contaminated water, and has the ability to digest tough desert plants. Not
only can it drink unpotable water, but it also converts the water to milk that
was used for consumption by the nomads, acting as a filtration system.3 Due
to its influence in every aspect of the daily life of a Bedouin, the camel was an
invaluable resource. Nevertheless, the camels were always in short supply as a
result of natural crises and a long gestation period. These issues would make
it necessary to acquire adult replacements for the lost animals.
Such a resource was in high demand for the people of the desert not only
for survival, but also in differentiating social status. Noble tribes had first
claim on the best camels. Among nobles, camels were never traded and only
given as gifts to kin.4 No noble tribe would sell its capital or demean itself by
giving tribute in camels. The few camels that were sold to settled townspeople
were old or sterile and were used to purchase necessary supplies such as
grains.5 Since there was no trading of camels between the groups of nobles,
the only option was to raid another tribe to recoup the losses and restore a
balance to the desert.
The necessity of camel raiding as a balancing force resulted in a code of
conduct for interactions between the noble tribes of the desert. Reciprocal
raids were always between equals and camels were the object, not loss of life.6
Camel raiding relationships followed a cyclical process, with periods of peace,
broken by minor thievery, which led to raiding, that finally culminated in a
truce and peace. At any given time, a tribe would be at peace with one tribe,
in a breakdown of relations with another, and in open hostilities with yet
another. From perpetual raiding and destruction, perpetual peace was born.
A tribe could always count on allies to come to their aid, even if they had been
enemies in the past. Animal husbandry, mainly of camels, goats, and sheep,
2: Id at 1136.
3: Id at 1137.
4: Id at 1137.
5: Id at 1137.
6: Id at 1141-1145.
defined the relationships a tribe would have with all others.7

II. Customary Law of the Northern Sinai
In the Northern Sinai, the traditional honor-based Bedouin justice system
is known as customary law.8 Under customary law minor disputes are settled
without lawsuits so that relations between members of a tribe are repaired
without litigation. This process relies on the deep respect for honor in Bedouin
society. In the case of the Rwala Bedouin, the wronged party is asked to cease
his claim of vengeance out of respect for himself and a powerful member of
the tribe. A guardian is then appointed to ensure that the injured party does
not pursue the defendant any further.9 Through mediations outside formal
judicial procedure, the Bedouins are able to repair the relationships that they
depend on for their survival. In the Northern Sinai an elder will mediate
minor disputes and arguments between families and tribe members. In many
cases, the two parties will consent to end their quarrel without litigation out
of respect and esteem for elders as well as the recognition of the significance
of the family and tribal unit.10 For minor disputes the Bedouin system of law
and justice works efficiently and facilitates rehabilitation of the community.
For more serious disputes other avenues must be pursued. In Rwala
Bedouin society, judges are selected based on heredity. The judicial power,
prestige, and honor is passed down from father to son. Decisions made by
hereditary judges take precedence over judgements made by tribal elders or
the chief.11 This is different from the nomads of the Northern Sinai. Instead
they choose their judges from tribal elders who have survived a long life with
their honor intact. The chosen elders are then assigned different roles based
on the subject matter of their experience. Judges in the Northern Sinai can
range in specialty from palm tree-related disputes to blood crimes.12 While
these two selection processes are distinct, they both rely on the honor of
the family or individuals serving as the customary judges. The honor based
judicial systems, which shift focus away from punishing the criminal and
towards reaching a consensus between defendant and plaintiff, immediately
7: Joseph J. Hobbs, Bedouin Life in the Egyptian Wilderness 8 (UT Austin 1989).
8: Kamal Abdallah al-Hilw and Said Mumtaz Darwish, Customary Law in
Northern Sinai, trans. Roberta L Dougherty xvi (Cairo: The Committee for the
Preservation of North Sinai Cultural Heritage 1989).
9: Alois Musil, The Manners and Customs of the Rwala Bedouins 426 (American
Geographical Society 1928).
10: Al-Hilw and Darwish at 3 (cited in note 8).
11: Musil at 426-427 (cited in note 9).
12: Al-Hilw and Darwish 4-14 (cited in note 8).
presents a problem for the states who count the Bedouin as their citizens.
Which system of law should be implemented for the Bedouin and how can
it be enforced? Does the continued practice of customary law show a lack of
state authority over the Bedouin?
With the Bedouins tribal social structure and sense of honor comes a
definition of justice and system of punishments that are at odds with the
practices of many modern sedentary states. The main difference between state
law and customary law is the system of punishments for crimes committed.
In Bedouin society, there are no punishments of imprisonment, hard labor, or
execution. Instead customary law dictates that property be returned and fines
paid to compensate for damages to property, social position, and status with
the understanding that the verdict can be subject to mediation.13 Following
the decision of the judge and the payment to the injured party, the wrongdoer
continues to fulfill his position in the tribe with no restrictions. An example of
this can be seen in the verdict from a manshad, a judge who deals with honor
crimes ones that concern rape, cutting of the face, and guarantors falsely
accused of breaking their pledges. Judge H.ajj Ibrahim Sulaymaan Suwaylim
of the Masaaiid tribe gives the following verdict as an outer limit for the
choices the parties can make concerning punishments in the resolution of
rape cases. The weapon or transportation of the rapist used to commit the
crime is confiscated or paid for in an equivalent value of camels (usually
around 10 camels). The judge then states that the man must lose the hand
used to touch the woman, the tongue used to order the act, and the eye that
saw her in an indecent way. These punishments can also be commuted to
camels, at 10 camels per body part. Once all payments for the acts committed
in the crime are paid for, the woman receives more camels, sheep, and gold
as compensation for the loss of her honor (usually 40 each). Finally, flags
are to be placed where the crime was committed, the place where the judge
made his decision, and one for the father. If the crime was committed in her
husbands tent, it is directed to be covered with white silk.14
Many crimes that occur in Bedouin society are resolved by a verdict where
strict accordance to the law is one option, and a mitigated verdict is another
option. Two important components of the verdict should be noted: the
options for punishment and the efforts to restore honor. The rapist is given
choices for payment that allow him to manage his material funds in ways that
will reduce the likelihood of it affecting his or his tribes survival. If he needs
a truck for transport or a weapon to protect himself, he is given the option
to pay for them in camels. If camels are valued more, he can keep them
13: Id at xxii.
14: Id at 69-71.
and give up the property used to commit the act. Similarly, he is allowed
to pay to prevent injuries to body parts vital to a pastoralist way of life. The
opportunity to avoid bodily harm, which would restrict his abilities to pursue
the life of a noble Bedouin, protects his honor he is not forced to wear
the marks of a rapist for the rest of his life. The victim, her father, and her
husband also have their honor restored in the form of the flags and white silk.
These signify that justice has been pursued, judgements have been made, and
honor has been rehabilitated. Customary law recognizes that what is at stake
is not punishment, but the reconstitution of honor.
III. Criminal Law: Murder and Assault

For the Bedouin, customary law represents true justice through
compensation, the courts restore the honor of the injured party and repair
the relationships of those involved in the crime. To the pastoralists, civil law
seems to be solely concerned with punishment and results in little recompense
for the plaintiff.15 Unfortunately, the matter of choosing a justice system is
neither always straightforward or under the circumstances possible. The
differences between civil and local law was seen in the case of the accidental
killing of a policeman. Ahmad Husayn al-Ali murdered the wife and children
of his brother and was arrested by the police civil law had become involved
in the incident. A relative of the wife traveled to the station and attempted to
access the cell where Husayn was being held. Upon seeing Husayn, the kin
of the victim tried to take his rightful blood vengeance but accidentally shot
and killed the policeman guarding the original murderer. What followed was
in accordance with Bedouin customary law. The kin of the man who shot the
policeman paid blood ransom to suspend blood vengeance for three days.
A group of honorable notables, both involved families, and members of the
Jordanian parliament then convened to arrange a six month truce. Following
the truce, a meeting to decide the case was scheduled. In accordance with
Bedouin customs, the kin of the dead man hosted all those who came to
witness the proceedings, which had numbered in the thousands. Once all
were present, the qadi imposed a payment of 2500 dinars to the victims
family for his murder. Following tradition, the victims family honorably
returned 1000 dinars for the sake of forgiveness. Within the total of 1500
dinars that remained, 500 were designated as compensation for the supplies
needed to host the large audience. After the conclusion of the judgement, the
two groups signed a document followed by the drinking of coffee further
hospitality offered by the victims of kin. The matter was then closed, with the
15: Id at 2.
relationship between the kin of the dead policeman and his killer restored in
a way that gave dignity to both parties. 16
An interesting feature of the case summarized above is that when civilians
had been murdered their killer was arrested and jailed, but the killer of a
policeman never saw a day of imprisonment. The presence of members of
the Jordanian parliament at the truce proceedings probably hints as to the
reason behind the abnormality. It seems as though the Jordanian government
noticed the potential for a devastating cycle of blood feuds over 2000 people
had shown up for the final proceedings and judgement and decided against
further action in the realm of civil law. Civil law in the first murder case had
not prevented further blood feud while Bedouin customary law was able to
compensate the family of the murdered man, satisfy the claims of the injured
family on revenge, and restore a balance to all relationships.
During the mediation of many legal cases in the Bedouin context, blood
ransom and protection play an important role. The fundamental principle
of the granting of protection in customary law is an essential component for
the maintenance of social balance among the pastoralists. Had the killer not
been protected in the case above, there would have been potential for a cycle
of blood feuds between the two families. Musil explains why the system of
protection succeeds in the Bedouin context, His honor, his good name are
the principal motives for a Rwejlis charity. There is nothing he fears as much
as dishonor to his good name and a reflection on his character, or, as he says,
the blackening of his face.17 Driven by their need to protect their reputation,
the Bedouin will defend the one who requests protection with all of their
power.
The following case demonstrates the power of legal protection and the
ramifications for violating it in repairing the relationships between families,
preventing further bloodshed, and restoring balance. The following issue
arose due to an altercation over a well between two cousins who needed
to water their flocks. The conflict resulted in one mans nose being nearly
cut off, grounds for vengeance. The assailant, Medbar, quickly claimed
protection in a nearby tent. What followed violated the code of protection,
putting the reputation of the protectors at risk. The injured man, Belhn,
attacked a relative of the assailant with a club. The protectors then confiscated
the possessions of Belhns kin as compensation for their lost face and as
punishment for not keeping the injured party in control of his emotions and
honor. All involved parties were then gathered to facilitate a reconciliation
16: Aharon Layish, Legal Documents from the Judean Desert 78-80(Leiden: Brill,
2011).
17: Musil at 451 (cited at note 9).
between both men and their kin. Both men were asked if they would be
reconciled with their cousin and upon agreeing were required to name a
surety to ensure that the peace would be kept. After the completion of this
process, the two men embraced, kissed, and the confiscated possessions were
returned.18 Once again the Bedouin justice system was shown to reconcile
rather than penalize and to end violence rather than escalate the situation.
In many cases, sharia law does not have an influence in the proceedings and
usually assumes a background role. Usually traditions in customary law,
designed repair necessary relationships and to maintain balance within a tribe
and between tribes dominate the legal proceedings. What is there to enforce
that harmony is the sense of honor in adhering to the mediated resolution.
The following case moves away from criminal justice and shifts into the
realm of trading regulations and laws. Many aspects of the verdict not only
disregard sharia law, but they contradict some of its fundamental tenets.19 The
agreement concerns the sale of a female horse between two Bedouin and the
unusual customary law nature of certain stipulations. In terms of payment
for the mare, the buyer has two months to pay the seller the full price of 50
Palestine pounds or faces a penalty of 25 pounds as damages.20 Sharia law
forbids usury, the making of money from money. Between the two month
delay of payment, similar to a loan, and the fee for the failure to pay within a
certain time window, the deal is dangerously close to becoming usury. With
regards to the articles of the contract, customary law makes provisions that
sharia law does not address. If the first or second foals of the mare are female,
they belong to the seller and if they are male, they belong to the buyer. The
transaction also provides that if a female foal dies before delivery to the seller,
the buyer owes him a further 50 pounds.21 Sharia law does not discriminate
between male and female offspring, and generally holds that all offspring
belong with the mother.22 The deviation from sharia law is most likely a
product of animal husbandry between the Bedouin and their most valuable
resource the Bedouin recognize the value of the female camel as the means
to preserve a herd. The key provisions that make this deal suspect in the
eyes of sharia law are necessary to ensure that the seller, the one losing an
animal, receives adequate compensation and protects him from the exposure
of reducing his assets necessary for desert survival.
Further shifting focus from sharia law, criminal law, and civil law is a
document designed to resolve a border dispute between two tribes, the
Aaywt and the Tiyhah. Defining a tribes territorial boundaries and
maintaining those boundaries can be as essential to that tribes survival as
the animals they nurture. In arid regions where fertile lands and water are
scarce, any and all territorial rights are heavily defended. Only members of
tribes are permitted to cultivate these regions and more importantly, dig wells
and cisterns.23 This document and the process by which it was devised offers
insights into how tribes determined legal boundaries.
This particular border dispute arose from the encroachment of the Tiyhah
onto Aaywt lands as their numbers of adult men began to dwindle. They
achieved this by cultivating fields and digging cisterns on Aaywt land. The
dispute was taken to a new level during an incident with the Egyptian military,
where telephone wire was stolen. After blaming the Aaywt for the theft
due to it having taken place in their territory, a Tiyhah shaykh then almost
immediately tried to claim that the land belonged to his tribe. The Egyptians,
not deceived by the Tiyhah attempt to secure land and telephone-line guard
jobs, determined that the Aaywt had the legitimate claim to the region.24
As with the murder case of Ahmad Husayn al-Ali, the legal determination of
the state did not constitute the conclusion of the border disagreement.
The Tiyhah continued to claim control over what had been determined
by the Egyptian army to be Aaywt land. What followed was the customary
Bedouin law resolution to border disputes. After all other avenues had been
exhausted, it was determined that a collective oath would be taken by elders
of the Aaywt to provide a final pronouncement on the border of the two
tribes. Oaths are a final recourse for the Bedouin because the nature of an oath
calls into question one of the parties honor. However, if no consensus can be
found, oaths must be taken. The Aaywt produced a document outlining
the borders they were willing to agree to. During a following meeting, elders
of the Aaywt would take an oath with the shaykh of the Tiyhah and
the boundaries would be finalized. Unfortunately the shaykh of the Tiyhah
never appeared at the set meeting. 25While customary law had not been able
18: Id at 443-444.
19: Layish at 369 (cited at note 16).
20: Id at 370.
21: Id at 370.
22: Id at 369.
23: Frank Henderson Stewart, Bedouin Boundaries in Central Sinai and the
Southern Negev: A Document from the Aaywt Tribe 3 (Wiesbaden: Otto
Harrassowitz, 1986).
24: Id at 4.
25: Id at 5-9.
IV. Trading and Border Disputes
to resolve the conflict at the time of the books writing, it provides a further
example of the power of customary law and its capability as the ultimate
authority in restoring order and balance in the desert.
V. Conclusion
In all of these cases, one concept begins to emerge: Bedouin customary
law differs significantly from civil law codes in several key areas. In modern
states, when a suspect is apprehended the trial follows a sequential order
arraignment, trial, and sentencing. The punishment for serious crimes almost
always results in lengthy imprisonment and the removal of the individual from
society. People who commit crimes are then known for the crimes they have
committed and have problems finding jobs, living in certain communities,
and performing day to day activities. In the murder case of Ahmad Husayn
al-Ali, the man who killed the policeman is not marked a murderer and
excommunicated from his society. As soon as the judgement has been made
and the coffee has been drunk, he is restored as a fully functioning member
in the tribes social network. If the Bedouin removed a person from the
community every time a crime was committed, the entire tribe would suffer
and their way of life could not be sustained. In the context of civil law, the
victims family is forced to accept and find solace in the verdict determined by
the jury and the sentence given by the judge. In the Bedouin context, both
parties and their kin are directly involved in the proceedings.
In fact, in customary law the burden is on the victim and their kin to
facilitate the resolution of the issue. In many of the suits, the injured party is
asked to forfeit their right to blood vengeance or retribution. In the case of
Medbar and Belhn, the original victims kin was punished for the violation
of a truce. A further example of a victim sacrificing to settle conflicts was in
the murder case of Ahmad Husayn al-Ali. The murdered policemans kin
hosted a gathering of over 2000 people without a complaint all in the
name of hospitality and honor. This suit also introduces another interesting
aspect of customary law. The reason for the original murder is not stated,
but the accidental killing of the policeman was a direct result of an attempt
to maintain the honor of a kin group. In an extraordinary cycle, honor both
caused the incident that resulted in the destruction of relationships but also
repaired the ties between the two families. The nature of customary law
allows for the pastoralists to command justice to repair relationships between
families and individuals instead of forcing them to be subjects of the law.
With the increasing encroachment of sedentary civilization onto Bedouin
lands, there is a need for cooperation between civil and customary law. As
seen in the cases studied in this paper, the two different legal systems are
often at odds with each other. Fortunately, the two are not always in conflict.
The Egyptian government realized that attempting to impose civil law on
the Bedouin only results in further complications. In the editors preface of
Customary Law in North Sinai, Ahmad Abd al-Majid Haridi references a
law passed in 1911 on the legal organization of Sinai. The law allows tribal
customary law representation in state law. Such a law allowed for the state
to impose penalties based on customary law rather than civil law.26 This is
perhaps the best solution for accommodating two different cultures and legal
systems within one political territory. It allows the Bedouin to maintain their
traditions and understanding of justice, preventing cycles of blood feuds,
which in turn benefits the state.
26: Al-Hilw and Darwish at xiv (cited at note 8).
34 | Picturing Democracy
Picturing Democracy: Analyzing Religious Exemptions to Voter

ID Laws
Elise Kostial
Abstract
Voter ID laws, which require voters to present photo identification
before casting their ballots, represent a highly controversial trend in
electoral policy. Voter photo ID requirements exist in seven states. While
supporters maintain that voter ID laws prevent fraud, opponents fear that
these regulations disenfranchise some segments of the voting population.
Typically, these concerns focus on prominent voting populations less likely
to possess photo identification, such as minorities, students, the elderly
and the poor. But, voter ID laws also impede democratic participation for
members of certain religious minorities. In this paper, I discuss how strict
photo voter ID laws compromise the voting and religious-freedom rights of
Americans with religious objections to being photographed. I examine voter
ID requirements based on the criteria courts commonly use to evaluate
religious exemption claims; I analyze the governments interest in imposing
voter ID requirements, the sincerity of voters religious objections to being
photographed, and the significance of the burden that voter ID laws impose
upon these voters. I explore judicial precedent. And, I ultimately conclude
that voter ID laws create unconstitutional voting barriers for those with
religious objections to being photographed, as well as that states have not
taken sufficient measures to mitigate these burdens.
Introduction
You probably would not have Amish people voting if a voter photo
ID requirement was established, Amish voter, Freeman Miller, claimed1.
Religious beliefs inform the Amish communitys objection to being
photographed. [Voting is] something that we take pretty seriously it
gives you the right to select who you feel believes in our way of life, he
1: See Tom Beres, Middlefield: Proposed Voter ID Law Could Hurt
Amish. (WKYC, 2011), archived at http://www.wkyc.com/news/
article/184021/45/Middlefield-Proposed-voter-ID-law-could-hurt-Amish.
asserted2. State Senator Tim Grendell, who was also interviewed for the
segment, provocatively defended his Amish constituents, and even suggested
that Ohios proposed voter ID law would condemn them to the position of
second class voters.3
Unfortunately, the rights of Amish voters are not frequently at the center
of the political dialogue regarding voter ID laws. Amish communities are
not traditionally politically active4. Typically, the Amish are more likely to
vote in the local elections that directly impact their communities.5 But,
the potential influence of this voting bloc has gained some candidates
notice. For example, in the swing states of Ohio and Pennsylvania, many,
including President George W. Bush, have actively pursued the Amish
vote.6 In 2004, in Lancaster County, Pennsylvania, Old Order Amish and
Mennonite voters turned out at a rate of approximately 62 percent7, very
near the national voter turnout rate of 64 percent8.
But, regardless of turnout statistics, a democracy must protect the rights
of all eligible voters. Voter ID laws, which require voters to present photo
identification before casting their ballots, threaten the enfranchisement
of Freeman Miller and others who share his religious beliefs. Members
of certain religious minorities, including the Amish, Mennonites, and
Molokans, object to being photographed due to their respective faiths.
Therefore, they do not have, and cannot obtain, photo identification.
Without statutory exemptions, these voters would have to compromise their
religious beliefs in order to comply with voter ID laws and vote in person.
That being said, voter ID requirements cause a conflict between two rights
2: Id
3: Id
4: See Donald B. Kraybill, Bush Fever: Amish and Old Order Mennonites
in the 2004 Presidential Election, Mennonite Quarterly Review 81, 2007:

168.
5: See Erin Ann Szulewski, Forgotten Voters: The Constitutionality of
Indianas Voter ID Law and Its Effect on Amish Voters, Rutgers Journal of
Law and Religion, 2013: 120.
6: See The Associated Press, GOP Courts Amish Voters in Swing States.
(NBC News, 2004), archived at http://www.nbcnews.com/id/5613947/ns/
politics/t/gop-courts-amish-votes-swing-states/#.VGFPir6przJ.
7: See Donald B. Kraybill, Bush Fever: Amish and Old Order Mennonites
in the 2004 Presidential Election, Mennonite Quarterly Review 81, 2007:
191-192.
8: See Kelly Holder, Voting Registration in the Election of November
2004. (U.S. Census Bureau, 2006), archived at http://www.census.gov/
prod/2006pubs/p20-556.pdf
fundamental to American democracy: the right to vote and the right to

religious freedom.
To my knowledge, the impact of voter ID laws on voters with religious
objections to being photographed has not been holistically reviewed.
Numerous articles address the merits of voter ID laws in general. A few
additional articles discuss the relationship between religious freedom and
other photo id requirements. For example, argued that drivers license
photo requirements are justified for public safety reasons.9 But, I have
found only one article, which examined religious objections to voter ID
laws10. The article specifically examined the effect of Indianas voter ID
law on Amish voters, and suggested that the state should offer better
accommodations.
I argue that the strict voter ID laws in seven states infringe upon the
voting and religious freedom rights of Americans with religious objections
to being photographed. Two states have established no religious exceptions
to their strict voter ID requirements. In the five states that have instituted
religious accommodations, the procedures by which the exemptions must
be claimed are quite cumbersome. However, it appears that no voter ID law
has been legally challenged on the grounds of religious freedom. Because
judicial precedent regarding religious exemptions is somewhat ambiguous,
it is difficult to predict how such a case would be decided. Firstly, I will
examine the legal history of religious exemptions in the United States.
Secondly, I will consider photo voter ID requirements using conventions
based on constitutional and statutory rights. The courts use these
conventions to evaluate religious exemption claims; that is, the importance
of the governments interest in establishing the requirement, the sincerity
of the religious belief in question and the significance of the burden
imposed upon free religious exercise. I will also explore relevant court
precedents regarding other photo ID requirements and voter ID laws in
general. Ultimately, I conclude that states that statutorily protect religious
freedom have an obligation to create religious exemptions to voter photo ID
requirements.
The History of Religious Exemptions in the United States
9: See L.N. Harris, You Better Smile When You Say Cheese: Whether the
Photograph Requirement for Drivers Licenses Violates the Free Exercise
Clause of the First Amendment, Mercer Law Review 61, no. 661 (2009):
611, http://heinonline.org/HOL/LandingPage?handle=hein.journals/
mercer61&div=32&id=&page=
10: Szulewski, Forgotten Voters, (cit. 5).
The freedom of religion is enshrined in the First Amendment, which

states that: Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof 11. But, whether
Americans are entitled to special legal protections based on their religious
beliefs is the subject of ongoing controversy. In the 1963 case, Sherbert v.
Verner12, the Supreme Court granted an American a legal exemption due
to her religious beliefs13. The Court created the Sherbert Test to evaluate
potential infringements on religious liberty by determining whether
a regulation imposed a substantial burden on the exercise of religious
freedom, and whether the government had a compelling interest in
enforcing the14. The Sherbert Test was used until 1990, when the Supreme
Court established a new standard15 in the case, Employment Division v.
Smith16. In Smith, the Supreme Court determined that the Sherbert Test
could not be applied to neutral, generally applicable laws17. Instead,
according to the Smith doctrine, regulations impacting free religious exercise
must simply be rationally related to a legitimate government purpose18.
The Smith ruling significantly limited the breadth of religious exemptions,
and seemed to effectively preclude constitutional protections for voters with
religious objections to photo ID requirements.
But, the Court notably designated, as an exception to the Smith
doctrine, hybrid rights. Hybrid rights may exist when a free exercise
claim is made in conjunction with another constitutional claim, such as
11: See US The Bill of Rights Amend 1.
12: 374 US 398 (1963).
13: See Douglas Laycock and Oliver S. Thomas, Interpreting the
Religious Freedom Restoration Act, Texas Law Review 73, no. 2 (1994):
tlr73&div=13&id=&page=.
14: See A. Adamczyk and R. Finke, Religious Regulation and the Courts:
Documenting the Effects of Smith and RFRA, Journal of Church and State
46, no. 2 (2004): 240, http://jcs.oxfordjournals.org/content/46/2/237.full.
pdf.
15: See A. Adamczyk and R. Finke, Religious Regulation and the Courts:
Documenting the Effects of Smith and RFRA, Journal of Church and State
46, no. 2 (2004): 240-241, http://jcs.oxfordjournals.org/content/46/2/237.
full.pdf.
16: 494 US 872 (1990).
17: See Cynthia Brower, Legal Analysis of Religious Exemptions for Photo
Identification Requirements, (Congressional Research Service, 2012,)
archived at http://fas.org/sgp/crs/misc/R40515.pdf.
18: Id
freedom of speech19. Even if a religious freedom claim alone is insufficient

to warrant protection, if another right is also infringed, the alleged
infringement should be examined under a higher level of scrutiny.
20
In theory, the hybrid rights doctrine could protect voters with religious
objections to being photographed. Photo voter ID requirements infringe
not only on the religious freedom rights of citizens obligated to obtain
photo identification, but also on their right to vote if they refuse to be
photographed. While I contend that such a claim has merit, relying on
the hybrid rights doctrine is a poor strategy. The definition of hybrid
rights is extremely vague21, and the application of the doctrine has been
inconsistent22. Some courts have completely ignored the doctrine; others
have required that the second constitutional claim be independently
viable; and, still others only require that the second claim be a colorable
claim for the doctrine to apply23. Therefore, it is uncertain whether a
claim against a voter ID law predicated on the constitutional protections of
religious freedom and voting rights would succeed under the hybrid rights
doctrine.
In response to the Supreme Courts ruling in Smith, Congress passed the
Religious Freedom Restoration Act (RFRA) of 199324. RFRA created the
statutory right to religious exemptions from laws25 in an attempt to restore
the Sherbert doctrine, after the Supreme Court ruled that constitutional
rights offer no protection. It required that any regulation impacting
religious freedom must be the least restrictive means of achieving a
compelling government interest26. In order for an exception to be
granted, RFRA states that the governments interest cannot be convincing,
19: See Ryan M. Ackers, Begging the High Court for Clarification: Hybrid
Rights Under Employment Division v. Smith, Regent University Law

Review, (2004): 4, http://regentuniversityonline.com/acad/schlaw/student_
life/studentorgs/lawreview/docs/issues/v17n1/4%20Akers.pdf
20: Id.
21: Id at 2.
22: See Jonathan B. Hensley, Approaches to Hybrid-Rights Doctrine
in Free Exercise Cases, Tennessee Law Review 68, no. 119, (2000):
tenn68&div=12&id=&page=
23: Id.
24: See Pub. L. No. 103-141, 107 Stat. 1488, codified at 42. U.S.C.
2000bb through 42 U.S.C.
2000bb-4.
25: Id.
26: Id.
sincere religious beliefs must be infringed upon, and the burden created by
the restriction must be significant27.
But, in the 1997 decision of Boerne v. Flores28, the Supreme Court
ruled that RFRA could not be applied to state laws because the federal
government lacked the general authority to regulate state laws29. Because
voter ID laws are instituted at the state level, they are exempt from the
provisions of RFRA. But following Boerne, a number of states established
versions of RFRA30. Of the states with strict voter ID laws31, four have
versions of RFRA, and one has an equivalent constitutional provision
interpreted to require strict scrutiny 32. Due to a patchwork of legal
doctrines, state courts apply different standards when considering claims
for religious accommodations to voter ID laws. But, I will next exclusively
evaluate voter ID laws that have been modeled after RFRA.
A Sufficient Government Interest
The courts have not consistently defined what constitutes sufficient
government interest. But, in detailing how the law should be applied,
RFRA cites pre-Smith doctrines that narrowly define a compelling
government interest33. Specifically, the creation of an exception must
jeopardize the compelling interest in order for the restriction to be
acceptable34. I argue that photo voter ID requirements do not fulfill a
compelling government interest, and that the creation of exemptions would
not significantly harm the governments interest.
Strict voter photo ID laws require that voters present photo
identification at the polls. Any voter without photo identification must cast
27: Id.
28: See 521 U.S. 507 (1997).
29: Id at 256.
30: See Eugene Volokh, Religious Exemptions a guide for the confused,
(The Washington Post, 2014), archived at http://www.washingtonpost.com/

news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-forthe-confused/.
31: See Wendy Underhill, Voter Identification Requirements; Voter ID
Laws, (National Conference of State Legislatures, 2014), http://www.ncsl.
org/research/elections-and-campaigns/voter-id.aspx.
32: See Volokh, Religious Exemptions, (cit. 30).
33: See Pub. L. No. 103-141, 107 Stat. 1488, codified at 42. U.S.C.
2000bb through 42 U.S.C.
2000bb-4.
34: Id at 222.
a provisional ballot and take additional steps after Election Day for it to
be counted35. Voter ID proponents claim that these laws are necessary to
prevent electoral fraud, specifically in-person voter fraud. They believe that
current voter identification standards are inadequate. In some states, for
example, a voter may prove his identity on Election Day simply by bringing
a utility bill to the polls, or by signing his name36. Consequently, state
legislatures across the country have adopted strict voter ID laws. Indiana
instituted the first strict voter photo identification requirement in 200637.
Currently, seven states, Georgia, Indiana, Kansas, Mississippi, Tennessee,
Texas and Virginia, have strict voter photo ID laws38.
Because voter ID laws are meant to prevent electoral fraud, the question
regarding the prevalence of fraud is central to the voter ID debate.
Unfortunately, electoral fraud undeniably occurs. That being said, voter
ID supporters have cited certain precincts in Pennsylvania that have
reported voter turnout rates greater than 100 percent39. But, critics are
not convinced that such examples justify the implementation of voter ID
laws. They contend that although in-person voter fraud exists, it does not
constitute a serious threat to American elections. Washington Post writer
Philip Bump argues that the type of fraud that voter ID requirements target
is not likely to alter the outcome of an election because almost no [federal]
general election race in recent history has been close enough to have been
thrown by the largest example of in-person voter fraud on record40.
According to an investigation by the New York Times, only 70 people were
convicted of crimes related to federal elections fraud between 2002 and
200541. Therefore, I argue that the evidence of in-person voter fraud is not
35: See Underhill, Voter Identification Requirements, (cit. 31).
36: Id.
37: See Suevon Lee, Everything You Need to Know About Voter ID Laws.
(PBS, 2012), archived at http://www.pbs.org/wnet/need-to-know/the-dailyneed/everything-youve-ever-wanted-to-know-about-voter-id-laws/14358/.

39: See Jonathan S. Tobin, Voter ID Laws are Inherently Reasonable, not
Racist or Republican. (The Christian Science Monitor, 2012), archived at
http://www.csmonitor.com/Commentary/Opinion/2012/0723/Voter-IDlaws-are-inherently-reasonable-not-racist-or-Republican.
40: See Philip Bump, The Disconnect Between Voter ID Laws and
Voter Fraud. (The Washington Post, 2014), archived at http://www.
washingtonpost.com/blogs/the-fix/wp/2014/10/13/the-disconnect-betweenvoter-id-laws-and-voter-fraud/.
41: See Eric Lipton and Ian Urbina, In 5-Year Effort, Scant Evidence
of Voter Fraud. (The New York Times, 2007), archived at http://www.
sufficient to justify the burden imposed by voter ID laws upon voters who
object to being photographed on religious grounds.
Sincere Beliefs
Members of some religious groups object to being photographed due to
their religious convictions. Many members of the Amish42, Mennonite43,
and Molokan44 faiths, Christian sects that follow traditional ways of life,
are prominent examples. These groups represent small, but culturally rich
American communities. In the United States, the Amish and Mennonite
populations total 300,000 and 500,000 45 respectively. Molokans number
about 30,000-50,000 in the states of California, Oregon and Arizona46.
Many members of these faiths believe in a literal interpretation of the 2nd
Commandment47, which states that: You shall not make unto yourself
any graven image, or any likeness of any thing that is in heaven above, or
that is in the earth beneath, or that is in the water under the earth48. They
consider photographs to be examples of the graven images that the Bible
prohibits49.
Because members of these sects object to being photographed, they are
unable to obtain photo identification without violating a fundamental
tenet of their belief systems. Existing photo ID regulations, particularly
drivers license photo requirements, have historically had demonstrable
impacts upon such communities. While most Amish Americans do not
drive 50, Mennonites and Molokans may operate vehicles without violating
their religious beliefs51. Because many of them live in rural areas, driving is
nytimes.com/2007/04/12/washington/12fraud.html?pagewanted=all&_r=0.
42: See Szulewski, Forgotten Voters, at 121, (cit. 5)
43: See The GOP Courts Amish Voters, (cit.
44: See Caitlyn Liu, DMV Puts No-Photo Drivers Licenses to the Test.
(The LA Times, 2003), archived at http://articles.latimes.com/2003/nov/18/
local/me-wheel18.
45: See Matthew Diebel, The Amish: 10 Things You Might Not Know.
(USA Today, 2014,) archived at http://www.usatoday.com/story/news/
nation/2014/08/15/amish-ten-things-you-need-to- know/14111249/.
46: Liu, DMV Puts No-Photo Drivers Licenses to the Test, (cit. 44).
47: Id.
48: See Exod. 20:4-5.
49: See Szulewski, Forgotten Voters, at 121-122, (cit 5).
50: See Diebel, The Amish: 10 Things, cit. 45.
51: See Liu, DMV Puts No-Photo Drivers Licenses to the Test (cit. 44).
critical to their livelihoods 52. Changes in drivers license regulations have

forced some communities to choose between adhering to their faiths and
obeying the law.
For example, Kentucky had once unofficially allowed residents with
religious objections to being photographed to obtain non-photo drivers
licenses. But, after the 9/11 terrorist attacks, the state changed its policy53.
Joseph Borntrager, an Amish-Mennonite bishop, described the dilemma his
community faces: We feel we are obligated to submit to the authority and
to the laws of the land, providing it does not overstep biblical principle54.
Cora Beachy, an Amish-Mennonite whose family owns a cattle farm in
Kentucky, [realized] the growing possibility the state may one day force
her to break her religious convictions55. Similarly, in 2004, Missouri
revoked the religious exemption to its drivers license photo requirement56.
In response, some members of a Mennonite community in north-central
Missouri moved to Arkansas, where they could still obtain non-photo
drivers licenses57. Those families decided to sell their homes and businesses,
a choice Leo Kempf said that he and his fellow Mennonites [didnt] take
lightly58.
Clearly, followers of these faiths are not simply attempting to avoid
the law by seeking religious exemptions to photo ID requirements. On
the contrary, they have demonstrated a willingness to make significant
personal sacrifices in order to comply with both the law and their religions.
While it is possible for dishonest voters to abuse religious exemptions,
the importance of protecting the enfranchisement of sincere voters
outweighs this risk. Without accommodating exemptions, voter ID laws
could effectively exclude Americans with religious objections to being
photographed from the opportunity to vote in-person on Election Day.
A Significant Burden
Concerns regarding voter disenfranchisement have instigated significant
opposition to voter ID laws. Voting populations known to be less likely
52: See Lee, Everything You Need to Know, (cit. 37).
53: See Joe Biesk, Amish-Mennonites Face Dilemma of Faith vs. National
Security. (Online Athens, 2003), archived at http://onlineathens.com/

stories/081603/fea_20030816009.shtml.
54: Id.
55: Id.
56: See GOP Courts Amish Voters (cit 6).
57: Id.
58: Id.
to possess photo identification, such as minorities, the poor, students,

and the elderly, are usually the focus of public debate. Many voter ID
opponents claim that, because minorities make up a disproportionately
large percentage of the population without photo identification59, voter
ID requirements are racially discriminatory. I argue that, because voters
with religious objections to being photographed cannot obtain photo
identification, voter ID laws also discriminate against certain religious
minorities. Critics of voter ID laws also reference the challenges faced by
voters attempting to obtain the free photo IDs issued by states with strict
voter ID laws. I will also argue that voters with religious objections to being
photographed face significant challenges when attempting to claim the
religious exemptions to voter ID laws offered by some states. I contend that
strict voter ID requirements abridge the rights of these voters. The legal
case for granting exceptions to photo voter ID requirements is particularly
strong in states that have enacted versions of RFRA60.
According to the National Conference of State Legislatures, seven states
have strict photo ID requirements61. Each of these states has a different
policy towards voters with religious objections to being photographed.
Table 1 explains the procedure by which one can obtain a religious
exemption, if it is offered, in each state. Five states have instituted policies
to accommodate in-person voting by residents with religious objections to
being photographed. But, voters in these states must still take measures
that are unreasonable in order to cast their ballots. Unlike voters who
must simply obtain and then renew their photo IDs, voters who qualify for
religious exemptions must take specific actions before or after every election.
In three states, requirements that voters appear before an election authority
pose a significant burden, particularly for Amish voters, whose religion also
prohibits them from driving62. The election authorities offices are likely to
be located a greater distance from voters homes than are their local polling
places. Finally, Virginia and Georgia, which have no statutory religious
exemptions to their voter ID laws, fail entirely to accommodate voters
with religious objections to being photographed. Because Virginia has also
enacted a version of the RFRA, this lack of accommodation is an especially
59: See Rene R. Rocha and Tetsuya Matsubayashi, The Politics of Race
and Voter ID Laws in the States: The Return of Jim Crow? Political
Research Quarterly 67, no. 3 (2014): 666-667, http://prq.sagepub.com/
content/67/3/666.full.pdf+html
60: See Brougher, Legal Analysis of Religious Exemptions, at 5 (cit. 17).
62: See Diebel, The Amish: 10 things, (cit. 45).
clear violation of voters statutory rights63.

Voter ID laws restrict the ability of voters with religious objections
to being photographed to vote in-person on Election Day. However, it
is important to note that, with the exception of Kansas, voter photo ID
requirements do not apply to absentee voting in most states with strict voter
ID laws. Thus, voters with religious objections to being photographed
usually may vote by mail without additional accommodations. But,
in-person voting is the traditional method of political participation in
the United States, and otherwise eligible voters should not be excluded
from voting at the polls. Arguably, the experience of voting has a social
significance beyond that of merely casting a ballot. Some view voting as
a patriotic experience and the vote as expressing support for one or other
electoral options, rather like cheering at a football match64. No American
should be denied the right to actively participate in our democracy based on
his or her religious beliefs.
Court precedent seems to support this interpretation. Although
alternative voting methods, such as absentee voting were available, in the
case Kerrigan v. Philadelphia Board of Election65, a US District Court ruled
that the board had to make neighborhood polling places accessible to voters
with physical disabilities under the Americans with Disabilities Act66. The
court recognized that these citizens should have the opportunity to vote inperson alongside other members of their communities, and that absentee
ballots did not provide a sufficient accommodation for disabled voters
who would prefer to vote in-person67. A parallel argument implies that
absentee ballots are not sufficient accommodations for voters with religious
objections to being photographed.
63: See Volokh, Religious Exemptions, (cit. 30).

64: See Geoffrey Brennan and Alan Hamlin, Expressive Voting and Electoral
Equilibrium, 95 Public Choice 149, 175 (1998).
65: See Pub L No.07-687 (E.D. Pa. Jan 29, 2008).

66: See Pub L No 101-336, 104 Stat. 327, codified at 42 U.S.C. 12101 et
seq.
67: Id
Table 1: Religious Exemptions to Voter ID Laws by State

In-Person Voting
Procedure
Additional
Requirements
Deadline
Photo ID
Required for
Vote-by-Mail
State
RFRA or
Equivalent
Georgia
No statutory
exemption or
in-person voting
accommodation
exists.
NA
NA
No
No
Indiana
Voters must vote

by provisional
ballot.
Voters must
visit the county
election office
and affirm that
an exemption
applies.
10 days
after the
election
No
Yes
Kansas
Voters must
complete a
Declaration
of Religious
Objection before
each election.
Voters may
submit the
DRO before an
election by mail,
fax, or email or
in-person at a
polling place.
Election
Day
Yes
Yes
Mississippi
Voters must vote

by affidavit
ballot.
Voters must
sign a separate
affidavit before
the Circuit
Clerk.
5 days
after the
election
No
No
Tennessee
Voters must
execute an
affidavit of
identity before
each election.
Voters may
complete the
affidavit in
person at their
polling places.
Election
Day
No
No
Texas
Voters must vote

by provisional
ballot.
Voters must
appear at the
voter registrars
office and sign
an affidavit
swearing to
the religious
objection.
6 days
after the
election
No
(Note:
qualification
for absentee
voting is
extremely
limited.)
Yes
Virginia
No statutory
religious
exemption or
in-person voting
accommodation
exists.
NA
NA
No
Yes1
Legal Implications
I have not located a court ruling specifically related to the impact of voter
ID laws on voters with religious objections to being photographed. But,
existing court precedents provide insight into relevant legal arguments. That
being said, I will examine the legal implications of the two following topics:
the creation of religious exemptions to drivers license photo requirements,
and the constitutionality of voter ID laws. Based on these precedents and
prevailing laws in many states with voter ID laws, I contend that religious
objectors have a valid legal claim against these laws.
The Constitutionality of Drivers License Photo Requirements
Photo ID requirements, such as photo requirements for drivers licenses,
are among the most significant policy restrictions that Americans with
religious objections to being photographed face. The Supreme Court has
never issued a decision on religious exemptions to drivers license photo
requirements, but the matter has been contested in court68. State courts
delivered conflicting decisions: in 1978, in Bureau of Motor Vehicles v.
Pentecostal House of Prayer, Inc., the Indiana Supreme Court declared drivers
license photo requirements unconstitutional; however, in 1979, in Johnson v.
Motor Vehicle Division, the Colorado Supreme Court declared an equivalent
statute constitutional69. In 1984, the Eighth Circuit Court of Appeals heard
a significant case, Jensen v. Quaring70. Although Frances Quaring did not
belong to an organized church, she believed in a literal interpretation of
the 2nd Commandment71. The court held that the state of Nebraska had
unnecessarily burdened Quarings First Amendment rights by refusing to
grant her an exemption to the states drivers license photo requirement72.
The case was appealed to the U.S. Supreme Court in 1985, but the court
did not issue a decision73. Thus, the Eighth Circuit Courts ruling, in favor
of Quaring, was automatically affirmed74.
Ultimately, the precedent Quaring established did not endure. After the
Smith decision, religious freedom claims received less scrutiny. More than a
decade later, the attacks on 9/11 prompted the courts to recognize a greater
69: See Harris, You Better Smile, (cit 9).
70: See 472 U.S. 478 (1985).
71: Id.
72: Id.
74: Id at 5.
need for accurate photo identification in the interest of public safety75. The
2005 case, Valov v. Department of Motor Vehicles76, represented this change
in reasoning. The state of California refused to renew a Molokans nonphoto drivers license. Because the drivers license requirement was neutral
and generally applicable, the court found no first amendment claim under
the Smith precedent77. Additionally, California does not have a RFRA law78.
But, multiple important factors differentiate voter ID laws from drivers
license regulations. Most importantly, as the California Court of Appeals
noted in Valov, driving, as opposed to voting, is a privilege rather than a
right79. Even under a strict scrutiny evaluation, I find a drivers license
photo requirement more acceptable than a photo voter ID requirement.
While a drivers license photo requirement poses a significant burden on
sincere religious beliefs, the governments interest in the requirement is
more compelling. As the court noted, photo identification serves to prevent
fraud, identify theft and terrorism80. In the interest of protecting public
safety, there is no sufficient alternative to quickly verify a persons identity
in an emergency81. However, public safety arguments made for drivers
license photo requirements are not necessarily applicable to voter ID laws.
For example, Texas Election Identification Certificate, a special voter ID
card, includes an explicit disclaimer that the card is for election purposes
only, and cannot be used as identification82. Clearly, non-photo voter ID
cards could be issued without compromising public safety. Therefore, court
precedent relating to drivers license photo requirements is not necessarily
indicative of a potential ruling on the impact of voter ID laws upon
religious freedom.
The Constitutionality of Voter ID Laws
The Supreme Court has heard cases challenging voter ID laws from
multiple states. In 2008s Crawford v. Marion County Election Board, the
Supreme Court upheld Indianas voter ID law, and indirectly addressed how
the law impacted voters with religious objections to being photographed83.
75: See Brougher, Legal Analysis of Religious Exemptions, at 8, (cit. 5).
76: See 34 Cal. Rptr. 3d 174 (Cal. Ct. App. 2005).
77: Id at 183.
78: See Volokh, Religious Exemptions, (cit 30).
79: See 34 Cal. Rptr. 3rd at 186-87.
80: Id.
81: Id.
82: See Tx.
83: See 553 U.S. 181 (2008).
While the Crawford ruling does not serve as binding precedent on this issue,
the justices opinions provide relevant legal insight84. Indianas voter ID
law states that voters with religious objections to being photographed may
vote by provisional ballot and [execute] an appropriate affidavit before the
circuit court clerk within 10 days following the election85.
The Court addressed Indianas interest in enforcing a photo voter
ID requirement. It recognized that Indiana had a legitimate interest in
preventing voter fraud. But, the majority opinion acknowledges that there
is no evidence of in-person voter impersonation, which is the only kind
of voter fraud [the law] addresses, in that state86. If reviewed under strict
scrutiny in a religious freedom claim, I argue that the states interest should
not be considered compelling.
The court also inconclusively addressed the burden that the law imposed
upon certain voters. Writing for the majority, Justice Stephens noted that,
as a result of the states voter ID law, a somewhat heavier burden may be
placed on a limited number of persons, including voters with religious
objections to being photographed87. Considering the evidence presented,
he concluded that such a burden upon a few voters was not sufficient
to overturn the entire law88. But, Justice Stephens also noted that on the
basis of the evidence in the record it is not possible to quantify either the
magnitude of the burden on this narrow class of voters [voters who do not
have birth certificates and voters who must cast provisional ballots] or the
portion of the burden imposed on them that is fully justified89.
Justice Souter expressed his concerns in his dissenting opinion. In it,
he wrote, Indianas Voter ID Law threatens to impose nontrivial burdens
on the voting right of tens of thousands of the States citizens and a
significant percentage of those individuals are likely to be deterred from
voting90. Justice Souter also asserted that: Indianas chosen exception does
not amount to much relief 91. He mentioned that voters with religious
objections to being photographed must take special measures after every
election and travel to their countys only county seat92. As evidence of
the effect of this requirement, he cited a 2007 municipal election in Marion
84: See Brougher, Legal Analysis of Religious Exemptions at 13, (cit. 5).
85: See 553 U.S. 181 (2008).
86: Id.
87: Id.
88: Id.
89: Id.
90: Id.
91: Id.
92: Id.
County, where the voter ID law was in effect. He claimed that: Thirty-four
provisional ballots were cast, but only two provisional voters made itto the
County Clerks Office within the 10 days93.
Although the Supreme Court upheld Indianas voter ID law, and
the principle of voter photo ID requirements, it did not conclusively
address the laws impact on voters with religious objections to being
photographed. In analyzing the case, attorney Cynthia Brougher, writing
for the Congressional Research Service, claimed, [It] appears probable
that the Court may reach a different result if that law were challenged as it
was applied to religious objectors. Such a challenge would involve a more
substantial burden than that imposed on non-objectors, according to the
opinions94. Thus, the legal implications of voter ID laws for voters with
religious objections to being photographed are still undetermined.
Conclusion
Voting and free religious exercise are both fundamental American rights.
Unfortunately, the Supreme Court has recently applied a lower standard
defining Americans religious freedom rights in cases relating to religious
exemptions. Based upon a vague hybrid rights doctrine and statutory
rights that vary by state, the legal claims of voters with religious objections
to being photographed against voter ID laws are uncertain. But, court
rulings on related issues, specifically on the constitutionality of drivers
license photo requirements and voter ID laws, provide relevant insight.
The Supreme Courts ruling in Crawford v. Marion County Election Board
notably indicates that a relevant as applied challenge to a voter ID
requirement might lead to a decision in favor of greater accommodations95.
Statutory rights in many states also provide some protection. While
state-level religious freedom statutes vary across the country, I argue that
voters with religious objections to being photographed should receive
exemptions to voter ID laws in states with existing RFRA protections.
According to the criteria the courts often to evaluate religious exemptions
under RFRA, these voters deserve reasonable accommodations. Evidence of
electoral fraud does not seem to constitute an interest sufficient to justify the
clear burden that voter ID laws impose upon religious minorities who object
to being photographed. These Americans are sincere in their beliefs, and are
willing to make personal sacrifices in order to remain in compliance with
93: Id.
94: See Brougher, Legal Analysis of Religious Exemptions, at 12, (cit. 5).
95: See 553 U.S. 181 (2008).
both the law and the mandates of their religions. I argue that voter ID laws
impose significant burdens upon these voters and that the accommodations
states currently provide are inadequate. Voters with religious objections to
being photographed must take special measures every election in order to
vote. In some states, voters are required to travel to appear before election
authorities, and to answer invasive questions about their faiths. Virginia
and Georgia have not established any accommodations for in-person voting
at all. Therefore, I argue that voters with religious objections to being
photographed should be granted exemptions to voter ID laws in states
with RFRA protections. Because non-photo identification alternatives can
be implemented to protect both the states interests and voters rights, the
ideals of electoral integrity and religious liberty are not mutually exclusive.
52 |In the Language of Because of
In the Language of Because of :

Transgender Identity, Theory, and
Title VII Jurisprudence
Andy Kim
I. Introduction
In December 2014, US Attorney General Eric Holder announced
that the Department of Justice would uphold interpretations of
the Civil Rights Act of 1964 in favor of protecting individuals not
only on the basis of race, color, sex, and national origin, but of
also gender identity and expression.1 Spurred in part by the ruling
in Macy v Holder, No 0120120821, 2012 WL 1435995 (EEOC
Apr 20, 2012), the Attorney General made his purpose abundantly
clear by explicitly including transgender individuals in Title VII
protections.2 Unsurprisingly, there was no shortage of criticism.
Drawing upon overly narrow definitions of sex and gender, critics
asserted that transgender protections lie outside of Title VIIs
intended purpose.3 However, I respectfully disagree with Holders
dissenters.
Title VII protections for transgender individuals flow naturally
from sound legal scholarship and established jurisprudence.4 In
extending protection to transgender individuals, Holder invokes
1:Class of 2016, Cornell University School of Industrial and Labor Relations.
Special thanks to Professor Allison Weiner Heinemann for her boundless
wisdom, kindness and constructive criticism.
Attorney General Holder Directs Department to Include Gender Identity und
Sex Discrimination Claims (Department of Justice, Dec 18, 2014), archived
at http://www.justice.gov/opa/pr/attorney-general-holder-directs-departmentinclude-gender-identity-under-sex-discrimination
2: Ibid
3: Ed Whelan, Eric Holders Transgendered Mutilation of Title VII, National
Review Online (2015).
4: William C. Sung, Taking The Fight Back To Title VII: A Case For Redefining
Because of Sex To Include Gender Stereotypes, Sexual Orientation, and Gender
Identity, 84 S Cal L Rev (2010-2011).
a fundamental link between sex-based discrimination on the one

hand, and gender-based discrimination on the other. While deeply
interconnected in concept, sex and gender are ontologically quite
different. For instance, an individuals reproductive organs and
glandular composition are markers of biological sex, yet the same
cannot be said of gender identity.5
Unlike gender, biological sex rests on a binary in which
individuals are endowed with certain physical characteristics at
birth, such as genitalia and hormone ratios. These markers are then
societally appropriated into gender expectations, roles assigned upon
gender identity and expression.6 Sex and gender are often entangled
in part because of social propensities to assign gender to objects and
actions that are not actually biologically sexed.7 For example, a dress
is not truly female, yet it has come to signify femininity. There
is no natural order to societally objectified gender, as there are no
anatomical or biological cues for the application of gender to fabrics
or toys.8
Thus, the application of these concepts hinge ever more upon
language, or to be more precise, conceptualization: the objects,
concepts, and entities that are assumed to exist in some area of
interest, and the relationships that hold among them.9 Formally
represented knowledge is based upon such conceptualizations. For
example, conceptualizations of sex and gender simplify extremely
complex facets of human identity, making abstract that which
we wish to represent with some express purpose such as a
purpose rooted in the protection of individuals from arbitrary
discrimination.10 From there, we can conjureontologies, explicit
specifications of conceptualization: because of sex, because of
gender identity and expression, or because of sexual orientation.
5: Jillian T. Weiss, Transgender Identity, Textualism, and the Supreme Court:
What is the Plain Meaning of Sex in Title VII of the Civil Rights Act of 1964?,
Temp Pol & Civ Rts L Rev (2009).
6: Ibid
7: Ibid
8: Ibid
9: Michael R. Genesereth and Nils J. Nilsson, Logical Foundations of Artificial
Intelligence (Morgan Kaufmann 1987).
10: Ibid
Through language, we can convey the commonly obfuscated interplay

between personal identity and external perception. Courts have used
this same differentiation to understand how discrimination because
of sex is, in fact, largely premised upon mere assumptions of
gender.11
To illustrate this point most completely, it is best to examine
judicial precedent in relation to transgender identity along all
ends of the spectrum: from non-operative to operative.12 Once the
current dynamics between established jurisprudence, federal antidiscrimination legislation, and non-normative gender identification
are understood, a clearer portrait emerges for how the United States
can better protect its citizens against workplace discrimination.
Part II will further examine gender theory. This section relies
particularly upon understanding terminology and establishes the
philosophical underpinnings for this critical aspect of human
identity.13 In Part III, a diverse body of jurisprudence will further
support this argument. Varied in scope, these cases span from district
and federal courts to the Supreme Court of the United States.
The two most pivotal cases in this debate are Price Waterhouse v
Hopkins,490 US 228(1989) and Schroer v Billington, 577 F Supp
2d 293 - Dist Court, Dist of Columbia (2008).14 These cases provide
sufficient evidence in favor of Holders statement, but a gamut of
additional cases will also be examined in support of the argument,
including Macy v Holder (2012), the very case which prompted
Holders declaration.
Finally, Part IV will examine potential albeit less desirable
alternatives to Title VII for protecting individuals on the basis of
gender. The Employment Non Discrimination Act (ENDA) is one
such fraught example.15 While with its benefits, ENDA is mired in
problematic language and implications, as is the notion of using

disability-related legislation for protecting post-operative transgender
individuals.16 Title VII protections, through the established logic of
the circuits, remain the best remedy for transgender individuals who
face discrimination in the workplace.
Transgender identity is fundamental in understanding how Title

VIIs because of sex clause protects individuals because of
gender as well. Transgender is an umbrella term for anyone whose
gender identity varies from the dimorphic norm.17 Essentially,
dimorphic non-normatism is delineated by mismatches between sexbased and gender-based attributes. Post-operative transsexual is the
most societally visible and widely recognized; however, transsexual
is only one of many transgender identities. Most non-traditional
gender identities are transgender as well.
In fact, the etymology of the word sex is rooted in the Latin
word sexus, a division or grouping, a derivative of seco, to cut or
divide. The language of sex stems from the idea of a division in
human nature, a classification of individuals based on specific traits.18
In western society, biological sex once heavily determined spheres
of living, or as Justice Bradleys concurrence in Bradwell v State of
Illinois, 83 US 130 (1873) stated, paramount destiny and mission
under the law of the Creator.19 This variety of essentialist sex-based
discourse relies upon three assumptions: 1) sexual dimorphism: the
existence of only two sexes and genders, male and female, 2) intrinsic
differences in physical ability between the two sexes, and 3) intrinsic
differences in psychological and behavioral characteristics between the
12: Paisley Currah, Richard M. Juang, and Shannon Price Minter, Transgender
Rights (Minneapolis: The University of Minnesota Press 2006).
13: Ibid
14: Price Waterhouse v Hopkins,490 US 228(1989) and Schroer v Billington,
577 F Supp 2d 293 - Dist Court, Dist of Columbia (2008)

16: Ibid
19: Ibid
II. Gender Theory: Trans Philosophy
two sexes.20
Thus, gender identity in early works of theory relied upon a
classical definition: having or being perceived as having a self-image
or identity not traditionally associated with ones biological maleness
or femaleness.21 There is a distinct twinge of cultural preference
in these foundations, the products of which are greatly varied for
individuals who are exceptions to the rule, ultimately a hardly
universal, obfuscated understanding of human identity.
Many courts have thus come to understand sex as the gender
posited to an individual at birth. However, such interpretations rely
heavily on legislative intent.22 Transgender identity is complex and
fairly new in the socio-legal scene. Congressional intent cannot be
applied to issues of gender and sex, as societys understanding of these
two concepts have evolved greatly, even since the inception of the
Civil Rights Act.23 More recent works have defined gender identity
or expression as meaning ones own deeply held conviction and
deeply felt inner awareness of belonging to one gender or another.24
Self-identification and self-expression do not correspond directly with
the physicality of an individual.
As mentioned previously, sex and gender cannot be used fully
interchangeably. Sex more properly refers to biological difference
between male and female, while gender more accurately assesses
societys construction of a system that identifies masculinity and
femininity.25 Unlike biological sexs binary scale, gender identity
characterizes individuals in more complex ways. For example, a
person may have both masculine and feminine traits and most
people do. Hyper masculinity and femininity would go so far as to
undermine normative expectations of an individual.
20: Ibid
21: Ibid
22: Ibid
23: Anthony E. Varona, Jeffrey M. Monks, En/Gendering Equality: Seeking
Relief Under Title VII Against Employment Discrimination Based on Sexual
Orientation, 7 Wm & Mary J Women & L (2000-2001).
25: Ibid
Gender theorist and legal scholar Mary Anne Case points to the
fact that the work of Justice Ruth Bader Ginsburg in the litigation
of sex discrimination cases in the 1970s may have hindered this
understanding.26 Ginsburg was among the litigators of the Supreme
Court sex discrimination cases of the 1970s, arguing that laws
based upon stereotypical assumptions about the sexes hurt both
women and men who violate these assumptions.27 Justice Ginsburg
supported the use of sex and gender interchangeably, adding to
the colloquial confusion of the present day.28 She reasoned that [f ]or
impressionable minds, the word sex may conjure improper images,
outside the scope of legislation, and more akin to what occurs in
porno theatres. She thus posited that the use of the word gender
in all situations where sex is applicable would ward off distracting
association, while retaining its grammatical understanding. While
there are benefits to precluding embarrassment or salacious thoughts
in the minds of judgment, this interchangeability reflects societys
problematic views on the matter.29 Ginsburgs suggestions, while
nearly 40 years old, have contributed to some confusion between
gender and sex in legal studies.30
In the past, courts attempted to establish precedent otherwise,
examining chromosomal, as well as gonadal, combinations in search
of legal classifications for gender.31 Based on Webster dictionarys
definition of sex, one court ruled that gender should not be
distinguished by their mind or mental state but instead by internal
organs, chromosomes, and ability to bear children.32 In the case
of transsexualism, this courts problematic opinion posited that,
although genitalia were cosmetically altered, internal organs were
26: Mary Ann C. Case, Disaggregating gender from sex and sexual orientation:
The effeminate man in the law and feminist jurisprudence, 105 Yale L J (October
1995).
27: Ibid
28: Ibid
29: Ibid
30: Ibid
32: Ibid
not altered, nor were [transsexual individuals] able to bear children.33

As explained earlier, the genitalia of a transgender individual do not
need to correspond with their gender identity a crucial distinction,
as genitalia are rarely portrayed as an explicit issue in employee
discrimination cases.34 Employers know little, if anything, about the
actual anatomical sex of their employees.
Courts analysis of Title VII must look beyond essentialist
understandings of sex. It has never been ruled by a court that a given
individual is legally male or female.35 Weiss points out that citizens
may truthfully identify sex and gender on birth certificates, drivers
licenses, and passports by simply marking M or F; however, this
is distinct from an individual explicitly becoming male or female,
for the legal purposes of X, in a binding manner.36 Identification
on documentation should be understood as statements of opinion,
as opposed to statements of law. Thus, discrimination is fueled by
sex-derived presumptions of gender, and not sex itself.37 In the end,
perception is what drives these hostile actions, and such actions are no
less unjust and hateful. Many lower courts simply have not displayed
an understanding of these fundamentals of gender theory to provide
uniform rulings on the matter. 38
III. The Transgender Protections of Title VII Jurisprudence
33: Ibid
34: Ibid
35: Ibid
36: Ibid
38: Sexual orientation completes the interdependent aspects of human sexbased identification. Biological sex and gender identity can be examined
separately from sexual orientation; however, once again this notion is deeply
rooted with the interactions between sex and gender. Sexual orientation [does
he mean biological sex?] is bound to human anatomy and genitalia. Sexual
orientation is largely distinguished by an individuals attraction to male or
female, an attraction which can be emotional and/or erotic. Legislation which
protects individuals from discrimination on these grounds refer to sexual
orientation explicitly for these reasons. Sexual orientation cannot be construed
from because of sex as easily as gender identity.
A. The Supreme Court: Price Waterhouse and Oncale

Before 1989, courts commonly rejected arguments that favored
the Title VII protection of transgender individuals from employment
discrimination. Transgender status was not considered a protected
class under because of sex of Title VII, or even a category in its
own right.39 The legal landscape was fixed on narrow interpretations
of sex and gender until the Supreme Court ruled on the watershed
case, Price Waterhouse v Hopkins,490 US 228(1989), in which the
Court deliberated on the subject of employer liability for sex-based
discrimination, explicitly establishing gender stereotyping as a type
of sex stereotyping prohibited under Title VII.40
This ruling serves as the foundation for the protection of all
individuals regardless of sex, gender identity, and sexual orientation.41
In Price Waterhouse, the plaintiff, Ann Hopkins, claimed that
her employer, Price Waterhouse, engaged in discriminatory
partnership promotion akin to sex-stereotyping based on her gender
nonconformity.42 The statements made by her coworkers and
supervisors provided ample evidence for the claim. Most strikingly,
Hopkins was told to walk more femininely, talk more femininely,
dress more femininely, wear make-up, have her hair styled, and wear
jewelry.43 Furthermore, of the 662 partners at the firm at the time,
only 7 were women. It was thus evident that Hopkins biological sex
played an active role in that promotion decision.
As the case proceeded through trial, both district and appellate
courts ruled in favor of Ann Hopkins. However, there was
disagreement as to what constituted a sufficient level of evidence.
When could a promotion decision be considered as truly resting
on gender, as clear and convincing evidence as opposed to a
preponderance of the evidence?44 The lower courts essentially ruled
that the employer must demonstrate that its employment decisions
40: Ibid
41: Price Waterhouse v Hopkins, 490 US 228 (1989)
42: Ibid
43: Ibid
44: Ibid
would have remained the same in the absence of discrimination. This

question was the primary source of the split in the Courts 6-3 ruling
in favor of Ann Hopkins.45
Interestingly, among the dissenters of Price Waterhouse, Justice
Scalia presented the majority in Oncale v Sundowner Offshore Services,
523US75(1998), a case which further supports the intended
applications of Title VII as proposed by this paper.46 Plaintiff Joseph
Oncale filed for sex discrimination based upon the hostile workplace
environment produced by sexual harassment from his male coworkers.47 Oncale was grossly physically and verbally molested,
leading to his voluntary resignation from the corporation.48 The
district and appellate courts both ruled against Oncale, in favor of
Sundowner.49 These courts ruled narrowly based on the supposed
societal appropriateness of same-sex harassment at the workplace.50
The Supreme Court thought otherwise.
In an 8-1 ruling, the Court ruled that prohibitions against
workplace harassment applied regardless of the actors sexes.51 More
importantly, however, in writing the majority, Justice Scalia stated
that the language of the Civil Rights Act evinces a congressional
intent to strike at the entire spectrum of disparate treatment of men
and women in employment, effectively drawing broader protections.
52
Sex-based discrimination is actionable when it places victims in an
objectively disadvantageous, hostile working condition, regardless
of sex or gender.53 Furthermore, sexual harassment does not need be
motivated by sexual desire, or in other words, the interplay between
individuals sexes or gender identities.
Price Waterhouse provides guidance for cases in which an
individuals gender identity and expression do not conform with
expectations of ones sex or gender, while Oncale allows for the
45: Ibid
46: Oncale vSundownerOffshore Services, 523 US 75 (1998)
47: Ibid
48: Ibid
49: Ibid
50: Ibid
51: Ibid
52: Ibid
53: Ibid
application of because of sex widely, beyond what Congress may

or may not have intended. Thus, the Court established the necessary
logic for the protection of non-conforming transgender individuals
under Title VII. Change within the circuits, however, has been slow
to come.54
Frustratingly, several lower courts have continued to reason that
transgender status still occupies a separate category from sex, as
defined and interpreted in Title VII.55 These courts have suggested
that non-normatively gendered individuals are deprived of sex-based
protections altogether.56
With the turn of the century, however, cases such as
SmithvCityofSalem, Ohio, 378 F 3d 566 (2004)57 properly
applied the reasoning of Price Waterhouse to rule in favor of Title
VII protections for transgender individuals. This was accomplished
by reasoning that such discrimination is indeed a form of gender
policing, the same which Anne Hopkins was subjected to decades
prior.58
B. The DC District: Schroer v Billington
With Schroer v Billington (2008), the District Court for the District
of Columbia established another pivotal victory for transgender
individuals, building upon Price Waterhouse through crucial lines of
reasoning in favor of applying Title VII protections to transgender
individuals.59 Petitioner Diane Schroer filed a claim for employment
discrimination because of sex against the Library of Congress,
after applying for a position as a terrorism specialist which required
her to undergo security clearance.60 Schroer was well qualified for the
54: Ibid
55: Mary Ann C. Case, Disaggregating gender from sex and sexual orientation:
The effeminate man in the law and feminist jurisprudence, 105 Yale L J (October
1995)
56: Ibid
58: Ibid
59: Schroer v Billington, 577 F Supp 2d 293 - Dist Court, Dist of Columbia
(2008)
60: Ibid
position, boasting relevant academic experience along with 25 years in

the military as a member of the Special Forces.61 Conflict arose when
Schroer disclosed that she would be undergoing gender reassignment
surgery to complete her transition to a fully female identity.62
When Schroer first interviewed, she had done so under her legal
name at the time, David Schroer, still maintaining a masculine
appearance. Following the interview process, she was offered a
position, scoring higher than any of the other prospective applicants.
Upon receiving the offer, Schroer disclosed her transsexual status,
explaining that she would be assuming a permanent, outward female
appearance following her upcoming surgery.63 Charlotte Preece, a
staff member of the Library of Congress, responded, Why in the
world would you want to do that?, going on to inform Schroer that
it was a lot to think about.64 After the exchange, Schroers offer was
rescinded, as Preece explained that, based on [their] conversation,
Schroer was not a good fit.65 The position was soon assumed by
the next highest-scoring candidate interviewed. Since 2005, Diane
Schroer has lived as woman, legally changing her identification
documents to reflect her name and gender transition.66
On review of these facts, the DC District Court considered two
questions:67 First, did the Library of Congress discriminate on the
basis of transsexual status in choosing to not hire Diane Schroer?
Second, does such discrimination on the basis of transsexual identity
violate Title VII?
The Library of Congress argued several non-discriminatory
reasons in defense of its refusal to hire Schroer unrelated to her newly
discovered transsexual status: these included concerns over her ability
to receive a timely security clearance, her overall trustworthiness,
her ability to focus while undergoing such a significant transition,
and a perceived inability for her to benefit from previously established
61: Ibid
62: Ibid
63: Ibid
64: Ibid
65: Ibid
66: Ibid
67: Ibid
military contacts due to her new physical identity.68

The Library of Congress concerns of security clearance,
trustworthiness, and lack of focus were all deemed pretextual by
Judge Robertson in that they were actually concerned primarily
with Schroers status as a transsexual.69 Concerns about Schroers
ability to retain her military contacts were discerned to be facially
discriminatory, as deference to the real or presumed biases of others
is discrimination, no less than if an employer acts on behalf of his
own prejudices.70
In regards to the question of transsexual status and Title VII, the
court ruled that this situation does in fact invoke the because of
sex clause, based on two different theories.71 The first involves the
notion of illegal sex-stereotyping, a doctrine established in Price
Waterhouse.72 Preece admitted her concern that Schroer did not
look feminine enough upon seeing pictures of her post-operative
appearance, claiming that Schroer appeared as a man dressed as a
woman.73
Certainly, the argument could be made that Schroers sex change
was accepted by Preece; however, as a woman, Schroer did not live up
to the physical expectations of the female sex. This sort of punishment
for gender non-conformity in the workplace clearly violates Title
VII.74 Gender non-conformity is a defining aspect of transsexualism,
and potential discrimination may therefore be prohibited outright
by this established jurisprudence.75 However, the court also looked
past gender stereotyping, stating that there were grounds that Schroer
was a victim of explicit sex discrimination.76 Due to the nature of
Schroers operation, which involved the conversion from one sex
to the other, the Library of Congress was deemed to have made an
employment decision very much because of sex. This second
68: Ibid
69: Ibid
70: Ibid
71: Ibid
72: Ibid
73: Ibid
74: Ibid
75: Ibid
76: Ibid
portion of Judge Robertsons ruling broke truly new ground, as no

other federal court ruled in such a manner on the same issue.77
Robertson draws an effective analogy to explain why transgender
is not a new category as many would argue: if an employer
discriminated against an employee who had converted from
Christianity to Islam, bias against only converts would be a clear
case of discrimination because of religion under Title VII. This
same notion can be applied to sex and gender as well, meaning
protections for converts from male to female from Title VII.78
The D.C. District Court has applied the precedent in ways other
courts have failed to.79 Judge Robertsons reasoning is especially
noteworthy for presenting an analysis of entrenched sex and gender
stereotypes that are detrimental to not only gender non-conforming
individuals but also all women. An even more recent decision
provides further sign of hope, as is demonstrated by its influence on
the Attorney General.
C. The EEOC: Macy v. Holder
In Macy v. Holder, the subject of transgender discrimination
coverage was once again questioned.80 In 2010, Mia Macy, at the
time still presenting as a man, began pursuing a position in a crime
laboratory with the Federal Bureau of Alcohol, Tobacco, Firearms and
Explosives.81 Through the beginning of 2011, Macy retained contact
with the director of the office, having been told she would receive
the position without issue once they completed a background check.
Shortly after Macy informed the office that she was in the process of
transitioning from male to female, however, she received an e-mail
from the firm that the position was no longer available due to federal
budget restrictions.82
Macy contacted an EEO counselor with her suspicions that the
position was withheld from her due to her sex transition, and in fact,
77: Ibid
78: Ibid.
79: Ibid.
80: Mia Macy v. Eric Holder, Attorney General, Department of Justice, EEOC
Appeal No. 0120120821 (December 9, 2011).
81: Ibid.
82: Ibid.
the lab had not cut the position, but instead hired someone else.83 In
June 2011, Macy proceeded to file a formal discrimination complaint
against her prospective employer. On the form, Macy described
the claim as being on the basis of sex, gender identity (transgender
woman) and sex stereotyping.84 It is vital to understand what
Macy wrote on her claim, because the information leads to two
separate means of recourse for discrimination on federal government
applicants.85
As the EEOC described it, the DOJ has one system for
adjudicating claims of sex discrimination under Title VII, and a
separate system for adjudicating complaints of sexual orientation
and gender identity discrimination by its employees.86 Macy was
notified that her transgender discrimination claim would thus not be
processed under Title VII and the relevant EEOC procedures. Why
was this problematic for Macy?87
The separate system for complaints based on gender identity
provided fewer rights and it also did not grant the complainant
power to have the case heard before an EEOC administrative judge.
This system relies on the distinct segregation of sex and gender,
and the primary question of the case was whether Macy was subject
to sex discrimination or gender identity discrimination.88
Could a transgender discrimination claim qualify as a claim of sex
discrimination under Title VII? This distinction alone would guide
the strength by which her claim was processed.89 According to the
EEOC, the sex discrimination protocols do apply to claims of gender
identity discrimination.90 Thus, the separation of Macys situation
into two separate claims was faulty, as both sex and gender are aspects
of sex discrimination. The precedent of Price Waterhouse supports
the conclusion that Title VIIs because of sex clause should be
interpreted as discrimination on the basis of sex and gender, biological
83: Ibid.
84: Ibid.
85: Ibid.
86: Ibid.
87: Ibid.
88: Ibid.
89: Ibid.
90: Ibid.
differences and the differences in social expectation attached to those

biological differences.91
Upon the same precepts, employers are not allowed to make a gender-based evaluations, the same evaluation that would be made on the
basis of transgender status, as I detailed in the section on gender theory:92
whether an employer discriminates against an employee because the individual has expressed his or her gender in a non-stereotypical fashion,
because the employer is uncomfortable with the fact that the person has
transitioned or is in the process of transitioning from one gender to another,
or because the employer simply does not like that the person is identifying
as a transgender person.93
Elaborating on this point, the EEOC concluded that transgender-based
discrimination is always unlawful, whether it involves gender-stereotyping or sex-stereotyping.94 The idea of sex-stereotyping ruled unlawful by
Price Waterhouse is only one means of proving sex discrimination, not a
separate action under Title VII because of sex.95 Both gender and sex
stereotyping are means of proof to demonstrate that an employer considered
sex and gender identity to be of importance in making an employment decision, a certain violation of Title VII.
The EEOC clinched the ruling by stating: Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect
people of a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other peoples prejudices
or discomfort.96 As Judge Robertson noted in Schroer, transgender status
is not some category distinct from sex and gender it is simply a manifestation of it. There are no grounds for separating such claims into different
systems.97
This is the ruling that motivated Holder in his December 2014 memo,
and as the order stems from the EEOC, the agency tasked with enforcing
and implementing Title VII, it was an important moment towards equal
91: Ibid.
92: Ibid.
93: Ibid.
94: Ibid.
95: Ibid.
96: Ibid.
97: Schroer v. Billington, 577 F. Supp. 2d 293 - Dist. Court, Dist. of Columbia
(2008)
protection for transgender individuals based on sex and gender.98 Although

federal courts are not as bound to implementing the EEOCs ruling, the
precedent outlined in this section demonstrates a growingly inescapable
reality discrimination against transgender individuals is well within the
scope of Title VII because of sex.99
IV. Stand-alone Legislation: A Separation of Equals

A. Dead-ends of ENDA
To date, efforts to enact specific federal legislation for the
protection of transgender individuals from discrimination have
been unsuccessful. Congress has long considered the Employment
Non-Discrimination Act (ENDA), which would extend explicit
protections similar to Title VII to individuals within the LGBT
community.100 Earlier bills covered both transgender and gay
individuals, but the all-important gender identity clause was
dropped in a last-minute compromise.101 However, based on the
promise of court and federal agency precedent that transgender is not
a separate category from sex, perhaps Congress should rethink the
notion of stand-alone legislation.102
The Equality Act of 1974 proposed the addition of sex, marital
status, and sexual orientation as protected classes under the Civil
Rights Act of 1964.103 This bill proved to be the first gay rights bill
proposed at the federal level, and unsurprisingly for its time, never
made it out of the House Committee. For the next two decades, civil
rights amendments in the same vein were proposed continuously.104
98: Attorney General Holder Directs Department to Include Gender Identity
und Sex Discrimination Claims. Department of Justice. 18 Dec. 2014. Web 8
Apr. 2015.
99: Sung, William C, Taking The Fight Back To Title VII: A Case For
Redefining Because of Sex To Include Gender Stereotypes, Sexual Orientation,
and Gender Identity. Southern California Law Review. Volume 84, Number 487
(2010-2011). HeinOnline Database.
100: Ibid.
101: Ibid.
102: Ibid.
103: Ibid.
104: Ibid.
Although they never made it far, they kept the subject on the
table, slowly garnering support amongst legislators: In 1974, only
3 members of Congress (0, House; 3, Senate) voted in favor of the
bill, while in 1991, the number was up to 126 (110, House; 16,
Senate).105
The passage of the Americans with Disabilities Act in 1990 (ADA)
demonstrated the potential success of a strategy focused on standalone legislation.106 This shifted activists away from attempts to pass
all-encompassing omnibus civil rights bills towards bite-sized pieces
of legislation that would leave many individuals unprotected when
taken alone.107
ENDA entered the scene in the early 1990s, and since then,
only two versions have made it out of congress: ENDA 1995, and
ENDA 2007.108 Unfortunately, ENDA has since been unacceptably
weakened for the sake of political expediency. For most of its history,
ENDA has been a trans-exclusive bill with no mention of gender
identity under its protections.109 In 2007, gender identity was added
alongside actual or perceived sexual orientation; however, this
amendment was short-lived, as it was once again dropped in favor of
expediency.110 As legal scholar William Sung eloquently describes the
situation: the T in LGBT was once again left silent. The community
was left split and more than happy to stay that way. Many of those
who identified under the LGB prong were happy to make this
incremental leap for protection.111
Perhaps, America was ready for this sexual orientation
protections but not that transgender protections. Oddly, by
choosing to mention only sexual orientation and not also identity,
proponents of a trans-exclusive ENDA ignore the core of the sex,
gender, orientation discrimination issue.112 Sexual orientation can
be viewed as a deviation of expectations about gender identity and
105: Ibid.
106: Ibid.
107: Ibid.
108: Ibid.
109: Ibid.
110: Ibid.
111: Ibid.
112: Ibid.
expression. By pinpointing only sexual orientation, proponents are

simply tackling, in many ways, an overly-specific subcategory.113 This
is the main fault of act; however, it is not the only one, as outlined by
Sung.
The most recent iterations of ENDA, as of ENDA 2009, have
expansive religious exemptions, and unlike Title VII, in an especially
problematic manner. Title VII states that religious organizations may
discriminate on the basis of religion, sex, or national origin if such
traits are Bona Fide Occupational Qualifications (BFOQ).
ENDA, on the other hand, exempts corporation, association,
educational institution, or society that is exempt from the religious
discrimination provision of Title VII. Without touching upon the
justification of BFOQ, ENDA would allow religious organizations to
discriminate without restraint. Such organizations are thus allowed to
discriminate based on perceptions alone.114
Another flaw in ENDA is its prohibition of disparate impact
claims, whereas Title VII allows such claims.115 This means that,
under ENDA, claims cannot be based merely on statistical
disparities between the number of transgender individuals in a
particular workplace as opposed to the number of transgender
individuals generally. This greatly restricts the avenues by which
discriminated individuals may assert their claims. Disparate impact
affects sex very clearly, and as the jurisprudence holds, transgender
individuals are not excluded from the category of sex.116 This
exclusion is dangerous because it allows employers to argue that
disparate impact claims because of sex are in fact transgender as
expressly outlined in ENDA, rendering the claim invalid.
Furthermore, stand-alone legislations as a whole are bound by
two considerations that make them ineffective if there is already
established law and precedent on a matter, as there is with gender
discrimination and Title VII.117 First is a lack of doctrinal
development. ENDA would not have the rich body of jurisprudence
113: Ibid.
114: Ibid.
115: Ibid.
116: Ibid.
117: Ibid.
for effective implementation of its provisions. The courts could very

easily manipulate this new statute to conform to a political agenda,
and thats if the legislature has not done so already.
A second fault of standalone legislation is its inherent vulnerability
to legislative tinkering.118 It segregates individuals with non-normative
gender identities and expressions from the protections of Title VII. In
such a vulnerable form of protection, lawmakers can push for further
amendments and changes to the law with little to no consequence
for other protected classes under Title VII.119 This would place
transgender individuals in a more disadvantaged position than before
at the mercy of politics, not the logic established by the judiciary.
B. Disability: Discrimination, and its Many Prongs
The Americans with Disabilities Act certainly had a hand in
inspiring support for ENDA, but disability anti-discrimination
laws also have the potential for protecting transgender individuals.
Although gender dysphoria120 is no longer classified as a
psychological disorder as of the last revision of the Diagnostic and
Statistical Manual of Mental Disorders (DSM), transgender individuals
may still be impaired, in ways which still constitute disability, by their
own attitudes towards gender identification.121
Transgender encompasses a wide range of experiences, and anti118: Ibid.
119: Ibid.
120: For a person to be diagnosed with gender dysphoria, there must be a
marked difference between the individuals expressed/experienced gender and
the gender others would assign him or her, and it must continue for at least six
months. In children, the desire to be of the other gender must be present and
verbalized. This condition causes clinically significant distress or impairment in
social, occupational, or other important areas of functioning. Gender dysphoria
is manifested in a variety of ways, including strong desires to be treated as the
other gender or to be rid of ones sex characteristics, or a strong conviction
that one has feelings and reactions typical of the other gender. The DSM-5
diagnosis adds a post-transition specifier for people who are living full-time as
the desired gender (with or without legal sanction of the gender change). This
ensures treatment access for individuals who continue to undergo hormone
therapy, related surgery, or psychotherapy or counseling to support their
gender transition. (Diagnostic and Statistical Manual for Mental Disorders 5.
American Psychiatric Association. 2013. P. 454.)
121: Ibid.
discrimination law should not ignore that. Some individuals describe

pain and discomfort due to their gender identity however, this is
not to say that these individuals are the only truly transgender ones,
while other are not (as was common when gender dysphoria was
considered a psychological disorder.) This acknowledges that there
is indeed a wide spectrum of lived experience and reason to identify
with a gender apart from ones biological sex.122
In fact, these differences in experience provide grounds for
eligibility for disability protection, and state courts have already been
granting protection for transgender individuals by means of state
disability legislation.123 The definition for disability under some state
legislation often mirrors that of the ADA, except without explicit
mention of transgender status, relying on three prongs: (1) a person
who has a physical or mental impairment that substantially limits
one or more major life activities; (2) a person who has a history or
record of such an impairment; or (3) a person who is perceived by
others as having such an impairment.124 This particular definition
was expressly crafted without mention of specific disabilities to
allow for the broadest protections as possible. Unfortunately, The
ADA explicitly excludes transgender individuals.125 At a federal
scale, transgender individuals cannot access protection on the basis
of disability.126 Primarily, this skews the general publics perceptions
of disability towards the overly narrow, focused solely on traditional
interpretations.127
Individuals who are in a post-operative state, necessitating
medication or further treatment, should be able to access disability
protections under both the first and second prongs, requiring
accommodation due to the fact that they had just undergone surgery,
122: Ibid.
123: Ibid.
124: Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat.
328 (1990).
125: Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat.
328 (1990).
126: Levi, Jennifer L., Klein, Bennett H., Pursuing Protection for Transgender
People through Disability Laws. Minneapolis: The University of Minnesota
Press, 2006.
127: Ibid.
regardless of surgery having been for gender reassignment.128 This

poses the danger of employers falsely justifying discrimination based
on disability for example, an employer could discharge an employee
because of the burdens caused by surgery, yet legitimately claim that,
in actuality, that individual was discharged because of transgender
identity, explicitly excluded. More than just that, scholars have also
provided strong evidence for the application of the third prong to
situations where transgender individuals may face discrimination.129
The regarded as prong was implemented in order to combat
stereotypical attitudes and ignorance surrounding impairment.130
Certain cosmetic features, such as burn marks or scars, fall under
the third prong of the ADAs definition of disability so as to prevent
attitudes and perceptions that may in themselves be disabling to an
individual. In itself, discrimination is disabling to an individual as
substantially [limiting] major life activities only as a result of the
attitudes of others towards such impairment, an idea central to
disability and its protections. 131
Transgender individuals can similarly draw upon the lens of
discrimination from reaction of others, not that transgender status
directly inhibits major life activities. Thus, the clause of exclusion in
the ADA is particularly injurious for the movement for protection
of transgender individuals. It should be removed from the law, if for
any reason that it further perpetuates narrow interpretations for the
category of disability as a whole.
V. Conclusion
Title VII and the Civil Rights Act as a whole are based upon the
premise of equal protections for all individuals. No proposed piece
of stand-alone legislation claim the same. Regardless of identity or
expression individuals can be victims of workplace discrimination
and harassment. As the DOJ and EEOC align with one another
in the interpretation of Title VII for the protection of transgender
128: Ibid.
129: Ibid.
130: Ibid.
131: Ibid.
individuals, and courts at all levels begin reasoning the same, it is only
a matter of time before this interpretation is maintained as a de facto
application of the because of sex clause. Stand-alone legislation
with the sole purpose of ensuring such protections, such as ENDA,
would impede such momentum. The jurisprudence surrounding Title
VII and proclamations of its application by federal agencies should
remain unhindered by all means.
A Supreme Court ruling on the matter would put much of the
opposition at ease, but in the meantime, change can also be effected
through amendments in two bodies of law. Crucially, the language
of the ADA should be amended to remove the explicit exclusion
of transgender status. There really is no harm in allowing multiple
avenues for protection of transgender individuals especially in regards
to a topic as personal as sex, and gender.
In fact, having multiple, established bodies of valid legislation can
help illuminate the realities each situation entails. If an individual
is experiencing discrimination based on supposed disability, he or
she should be able to access protection as such. The ADAs explicit
prohibitions of transgender should be reexamined since, although
state-level remedies may be effective, the scope of such protections
are lacking. It is important that these protections be approached from
a federal lens. The United States must enact federal legislation so
all workers may be ensured protection, even those working in small
business and state government. Critics who point to corporate-based
protections fail to recognize those left without protection in a broader
sense.
I recommend, however, that the fullest path to protection lies
in amending Title VII to include gender identity and gender
expression to further clarify the rulings of the courts. Legal scholars,
such as William Sung, have argued for this expanded language
under Title VII. This move would not conflict with the dealings
of the courts in fact, the amendment would with the established
framework exceedingly well. The established jurisprudence holds
that gender is a key aspect of sex discrimination, and there is
precedent for implementing such amendment through the Pregnancy
Discrimination Act of 1978.132
132: Pregnancy Discrimination Act (PDA), 42 U.S.C. 2000(e) et seq.
This Acts purpose was to amend Title VII of the Civil Rights Act
of 1964 to prohibit sex discrimination on the basis of pregnancy,
ultimately adding the language of pregnancy directly into because
of sex.133 Thus, Congress can more easily envision and model
an Act which similarly prohibits sex discrimination on the basis
of gender identity and gender expression. When pregnancy
discrimination is not a disparate category from sex discrimination,
it is only stranger that gender discrimination is not already ruled as
so without except. In such a legislative climate, these amendments
can only help to bolster such rulings, and it is imperative that the
government do so.
Under what circumstances would it truly be justified to
discriminate against an individual based on prejudiced assumptions?
When it comes down to it, this is not a fight for transgender rights
or gay rights. Politics does not need to have a say in the prevention
of discrimination in any form. It is in the spirit of human rights
that Title VII infallibly codifies protections protection from hateful
discrimination, a bare minimum that must be ensured.
133: Ibid.
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1:
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1963): 47.
expect
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2:
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Evans, At2 Home, National Review, Vol. 15, No. 1 (July 9, 1963): 6.
future
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Oyez Project at ITT Chicago-Kent College of Law, http://www.oyez.org/
cases/1960-1969/1961/1961_468/.
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III. Picturing Democracy: Analyzing Religious Exemptions to Voter ID Laws

Executive Articles Editor

Executive Blog Editor

Sponsored by the Student Government Finance Committee

UCULR Volume IV, Issue 1 | 5

Let Justice Be Done Through the Heavens Fall - Why Ballot

UCULR Volume IV, Issue 1 | 7

The independent expenditure limitation, in the words of Claiborne Pell,

UCULR Volume IV, Issue 1 | 9

of contribution limits by limiting the demand for money among

However in Buckley v. Valeo (1976)16, the Supreme Court laid waste

UCULR Volume IV, Issue 1 | 11

particular interest here, was the Courts differential analysis of expenditure

UCULR Volume IV, Issue 1 | 13

benefit if they collectively organize and apply pressure on the government

As a purely descriptive matter, pluralist democrats and cynical public

UCULR Volume IV, Issue 1 | 15

Ideally, citizens would exercise this prerogative by voting and participating

the government in question loses legitimacy in the eyes of its citizens, to

UCULR Volume IV, Issue 1 | 17

follows that substance is just as important as procedure. At a minimum,

UCULR Volume IV, Issue 1 | 19

pluralism is similar to a Greek Siren, beautiful from a distance but

impediments are combated to the fullest extent possible is less likely to

UCULR Volume IV, Issue 1 | 21

second objection betrays a fundamental misconception that has obscured

56: See note 44.

UCULR Volume IV, Issue 1 | 23

24 | Balance, Justice, and Honor

UCULR Volume IV, Issue 1 | 25

Balance, Justice, and Hoor: Bedoin Customary Law in the

26 | Balance, Justice, and Honor

defined the relationships a tribe would have with all others.7

UCULR Volume IV, Issue 1 | 27

28 | Balance, Justice, and Honor

UCULR Volume IV, Issue 1 | 29

30 | Balance, Justice, and Honor

UCULR Volume IV, Issue 1 | 31

IV. Trading and Border Disputes

32 | Balance, Justice, and Honor

UCULR Volume IV, Issue 1 | 33

26: Al-Hilw and Darwish at xiv (cited at note 8).

UCULR Volume IV, Issue 1 | 35

Picturing Democracy: Analyzing Religious Exemptions to Voter

in the 2004 Presidential Election, Mennonite Quarterly Review 81, 2007:

fundamental to American democracy: the right to vote and the right to

UCULR Volume IV, Issue 1 | 37

The freedom of religion is enshrined in the First Amendment, which

freedom of speech19. Even if a religious freedom claim alone is insufficient

Rights Under Employment Division v. Smith, Regent University Law

UCULR Volume IV, Issue 1 | 39

(The Washington Post, 2014), archived at http://www.washingtonpost.com/

(PBS, 2012), archived at http://www.pbs.org/wnet/need-to-know/the-dailyneed/everything-youve-ever-wanted-to-know-about-voter-id-laws/14358/.

UCULR Volume IV, Issue 1 | 41

UCULR Volume IV, Issue 1 | 43

critical to their livelihoods 52. Changes in drivers license regulations have

Security. (Online Athens, 2003), archived at http://onlineathens.com/

to possess photo identification, such as minorities, the poor, students,

clear violation of voters statutory rights63.

63: See Volokh, Religious Exemptions, (cit. 30).

Equilibrium, 95 Public Choice 149, 175 (1998).

65: See Pub L No.07-687 (E.D. Pa. Jan 29, 2008).

UCULR Volume IV, Issue 1 | 45